and does not make a signed document, which complies with its provisions, a valid contract, if it is not such, "according to the good faith and real intentions of the parties" (b). An agreement is the result of the mutual assent of two parties to certain terms, and if it be clear that there is no consensus, what may have been written or said becomes immaterial (c). The first question in every case must therefore be, whether there has in fact been a concluded agreement between the parties, or whether what has passed amounted to nothing more than a negotiation.

SECTION 2.

CERTAINTY OF SUBJECT-MATTER AND OF THE TERMS OF THE CONTRACT.

In order to establish a contract for the sale of land, it is necessary to show both certainty as to the subject-matter of the contract, and certainty that the terms of sale were agreed to.

Uncertainty of Subject-Matter. If the subjectmatter of a contract is too vague, there is no binding agreement. Thus where a vendor reserved "the necessary land for making a railway through the estate to Prince Town," JESSEL, M.R., said: "I neither know what is the amount of land necessary

(b) Jervis v. Berridge (1873), L. R. 8 Ch. 360.

(c) Chinnock v. Marchioness of Ely (1865), 4 De G. J. S. 638. The proposition in the text must be taken subject to this qualification, that if a man enters into a written agreement expressed in clear and unambiguous terms, he cannot be heard to say that he misunderstood it. See Falck v. Williams, [1900] A. C. 176; and see infra, Chap. XVI., Sect. 4.

for a railway, nor what line the railway is to take, and therefore I cannot enforce specific performance of the contract" (d). But when the subject-matter is capable of ascertainment, mere uncertainty as to the measurement of the land is not necessarily fatal (e).

Uncertainty of Price.-A fixed price is an essential ingredient in a contract for sale of land (f). The court will enforce a contract to sell at a fair valuation (g), but where the mode of valuation is specified the court will not, as a rule, give relief unless and until the price has been ascertained by the prescribed means. Thus, if the property is to be valued by a specified person, and he dies before making the valuation, the contract fails (h). But when the property to be valued is only an adjunct of the purchase, and not an essential part thereof, the court will enforce the purchase except so far as it relates to the property to be valued (i).

Uncertainty of other Terms.--If the agreement furnishes a standard from which the terms can be ascertained the maxim applies id certum est quod

(d) Pearce v. Watts (1875), L. R. 20 Eq. 492; Lindsay v. Lynch (1804), 2 Sch. & Lef. 7.

(e) Jenkins v. Green (1858), 27 Beav. 437; Sanderson v. Cockermouth Rail. Co. (1849), 11 Beav. 497; and cf. decisions of KEKEWICH, J., in Wylson v. Dunn (1887), 34 Ch. D. 569; North v. Percival, [1898] 2 Ch. 128.

(f) Milnes v. Gery (1807), 14 Ves. 408.

(g) Wilks v. Davis (1817), 3 Meri. 509; and cf. Marsh v. Jones (1889), 40 Ch. D. 563.

(h) Firth v. Midland Rail. Co. (1875), L. R. 20 Eq. 100. (i) Richardson v. Smith (1870), L. R. 5 Ch. 648!

certum reddi potest (k). Moreover, if all the essential terms of an agreement for the sale of land have been determined, the fact that some minor details are left unsettled will not, in the case of an informal memorandum, prevent the contract from being held binding (1).

Thus it is not uncommon on a sale of real estate that the time for completion should not be fixed, and if no time is fixed, the inference is, that the completion will be within a reasonable time (m). Consequently, where a purchaser in accepting an offer said: "I should like to know from what time the vendor wishes the purchase to date," it was held by the Court of Appeal that there was, nevertheless, a concluded contract (n). If, however, the contract is for the sale of the goodwill of a business, in addition to the sale of real estate, the time for completion is one of the essential terms of the contract (0).

SECTION 3.

OFFER AND ACCEPTANCE.

It is, of course, obvious that an offer to buy or sell land does not constitute a contract. Unless and

(k) Foster v. Wheeler (1888), 38 Ch. D. 130; Pickles v. Sutcliffe, [1902] W. N. 200.

66

(1) Cayley v. Walpole (1870), 39 L. J. Ch. 609; Gray v. Smith (1889), 43 Ch. D. 219, 220. When a memorandum is intended to be worked out by a formal document, it is not necessary that every stipulation which would be contained in the latter document shall be indicated."

(m) Gray v. Smith (1889), 43 Ch. D. 214.

(n) Simpson v. Hughes (1897), 76 L. T. 237.

(0) Donnison v. People's Café Co. (1882), 45 L. T. 187; May v. Thomson (1882), 20 Ch. D. 716.

until the offer has been accepted there is no consensus, that is to say, the two minds have not come together.

An offer may be revoked at any time prior to acceptance, and this is so, even where there is a promise to keep the offer open until a particular date (p), unless this promise is founded on a valuable consideration (q). As a general rule the acceptance of an offer ought to be notified to the offeror (i.e., to the person who makes the offer); but since notification of acceptance is required for the benefit of the offeror he may dispense with notice to himself if he thinks it desirable to do so (r); and if the offeror expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding it is only necessary for the person to whom such offer is made to follow the indicated method of acceptance. It is on this principle that it has been held that where an offer is made and accepted by letters sent through the post, the contract is completed the moment the letter accepting the offer is posted (s), even although it never reaches its destination; and the rule is the same whenever the circumstances are such that it must have been within the contemplation of the parties that the post might be used as a means of communicating the acceptance (t).

(p) Cooke v. Oxley (1790), 3 T. R. 653; Dickinson v. Dodds (1876), 2 Ch. D. 463; Routledge v. Grant (1828), 4 Bing. 653. (q) Reichel v. Bishop of Oxford (1887), 35 Ch. D., at p. 48. (r) E.g., in the case of the offer of a reward.

(8) Dunlop v. Higgins (1848), 1 H. L. Cas. 381; Household Fire Co. v. Grant (1879), 4 Ex. D. 216; but delivery of a letter to a postman to be posted is not posting.

(t) Henthorn v. Fraser, [1892] 2 Ch., at p. 27.

On the other hand, the revocation of an offer is of no effect until it is communicated to the offeree, i.e., brought to the mind of the person to whom the offer was made, so that the revocation of an offer, if sent by post, does not take effect from the time of posting, but from the time that it is received by the other party (u).

It follows from what has been said that if the acceptance is posted before the letter containing a revocation of the offer has been delivered there is a binding contract.

Contract contained in Letters.-Where it is sought to make out a binding contract from a number of letters, it is necessary to look at the whole correspondence (x). "You must not at one particular time draw a line and say, 'We will look at the letters up to this point, and find in them a contract or not, but we will look at nothing beyond (y).

Thus, two letters, which, if they stood alone, would be evidence of a sufficient contract, may be shown by subsequent correspondence not to have contained all the terms of contract (). On the other hand, if the two letters had constituted a completed agreement, this agreement cannot be affected by the re-opening of negotiations between the parties in

(u) Byrne v. Van Tienhoven (1880), 5 C. P. D. 344; Henthorn v. Fraser, [1892] 2 Ch. 27.

(x) Hussey v. Horne-Payne (1879), 4 App. Cas. 411. (y) Ibid., at p. 316.

(z) Bristol, Cardiff and Swansea Aerated Bread Co. v. Maggs (1890), 44 Ch. D. 616; Williams v. Brisco (1882), 22 Ch. D. 441.