ADDENDA.

*P. 15. The Satanita, [1895] P. 255, illustrates the making of a contract by conduct. A Yacht Racing Association offered prizes, made rules governing the competition for these prizes, and, among other rules, required the owner of a yacht which neglected certain conditions to pay damages for injury resulting from such neglect. Every yacht owner who sailed his yacht in competition for such prizes thereby contracted with every other owner who sailed his yacht to abide by the rules or to pay damages if injury resulted from their breach.

*P. 71. Abbott & Co. v. Wolsey, [1895] 2 Q. B. 97. Acceptance under 56 & 57 Vict. c. 71. § 4. sub-s. 3 takes place where the buyer does any act in relation to the goods which recognizes a pre-existing contract of sale.' Such acceptance makes the contract actionable, and differs from acceptance in performance of the contract under § 35, for this last may take place 'not only by acts but by an intimation to the seller that the goods are accepted.'

*P. 166. Turner v. Green, [1895] 2 Ch. 205. In an agreement for the compromise of a suit neither party is bound to tell all he knows, nor is nondisclosure by one party of a fact which would have influenced the judgment of the other a ground for refusing specific performance.

*P. 227. Flood v. Jackson, [1895] 2 Q. B. at pp. 26, 27. Kennedy, J., points out that a malicious inducement to discharge a person from his employer's service, or a malicious inducement to refuse to employ him, are wrongs independent of an existing contract to employ. The right of action may arise from an inducement to break a contract, as in Lumley v. Gye, and other cases, but it need not do so. It is the malicious interference with another man in his trade or livelihood which, apart from contract, furnishes the cause of action.

*P. 294. O'Neil v. Armstrong is affirmed on Appeal, [1895] 2 Q. B. 70.

PART I.

INTRODUCTION.

THE PLACE OF CONTRACT IN JURISPRUDENCE.

ject.

AT the outset of an inquiry into the principles of the outline of law of contract it is well to state the main objects of the the subinquiry and the order in which they arise for discussion. We must first ascertain what we mean by contract, and what is the relation of contract to other legal conceptions. contract. Next we must ask how a contract is made; what things are needful to the formation of a valid contract.

Nature of

Its forma

tion.

When a contract is made we ask whom it affects, or Its operacan be made to affect. This is the operation of contract.

tion.

Then we inquire how the courts regard a contract in Its interrespect of the evidence which proves its existence, or the pretation. construction placed on its terms. This we may call the interpretation of contract.

Last we come to the discharge of contract, or the vari- Its disous modes by which the contractual tie is unfastened and charge. the parties relieved from contractual liability.

And first as to the nature of contract.

Nature of

contract.

Contract is agree

Contract results from a combination of the two ideas of agreement and obligation. This statement must be limited in its application to a scientific system of juris- ment prudence in which rights have been analyzed and classified. The conception of obligation, as we understand it, tion.

resulting

in obliga

Requisites

of agreement.

Savigny, System, § 140. 4.

Two or

more per

sons,

distinct

intention

common to both,

[*2]

was probably not clearly present to the minds of
the judges who first enforced promises to do or to
forbear; and we may be quite sure that they did not rest
their decisions, as to the validity of such promises, upon
agreement or the union of wills.
But the analysis is none
the less accurate because it has not always been made or
understood.

Contract is that form of agreement which directly contemplates and creates an obligation: the contractual obligation is that form of obligation which springs from agreement. We should therefore try to get a clear idea of these two conceptions, and to this end Savigny's analysis of them may well be considered with reference to the rules of English law.

§ 1. Agreement.

1. Agreement requires for its existence at least two parties. There may be more than two, but inasmuch as agreement is the outcome of consenting minds the idea of plurality is essential to it.1

2. The parties must have a distinct intention and this must be common to both. Doubt or difference are incompatible with agreement.2 The proposition may be illustrated thus:

Will you buy my horse if I am inclined to sell it? Very possibly.'

Difference. Will you buy my horse for £50?' 'I will give £20 for it.'

1 "It is a first principle, that in whatever different capacities a person may act, he can never contract with himself, nor maintain an action against himself. He can in no form be both obligor and obligee.” Morton, J., in Eastman v. Wright, 6 Pick. (Mass.) 316. Gorham's Adm'r v. Meacham's Adm'r, 63 Vt. 231, H. & W. SS.

2 Minneapolis &c. Ry. v. Columbus Rolling Mill, 119 U. S. 149, H. & W. 74; Rovegno v. Defferari, 40 Cal. 459, H. & W. 261; Rupley v. Daggett, 74 Ill. 351.