and capable of creating them. Guthing v. 2 B. & Ad. Taylor v. 1 M. & S. Davies v. Ch. D. 359. (9) Acceptance must be absolute, Honeyman v. Marryat, 6 H. L. C. 112. tions. The parties must make their own contract; the courts will not construct one for them out of terms which are indefinite or illusory. A bought a horse from X and promised that if the horse was lucky to him he would give £5 more or the buying of another horse': it was held that such a promise was too loose and vague to be considered in a court of law. A agreed with X to do certain services for such remuneration as should be deemed right: it was held that there was no promise that A should receive anything, nor any engagement capable of enforcement. A covenanted with X to retire wholly from the practice of a trade so far as the law allows': it was held that the parties must fix the limit of their covenant and not leave their agreement to be framed for them by the court.1 § 9. Acceptance must be absolute, and identical with the terms of the offer. Unless this is so the intention expressed by one of the parties is either doubtful in itself or different from that of the other. If A offers to X to do a definite thing and X *accepts conditionally, or introduces a new term into the acceptance, his answer is either a mere expression of willingness to treat, or it is in effect a counter proposal. Acceptance therefore must be absolute. [*42] A proposed to sell a property to X; X accepted 'subject to the terms of a contract being arranged' between his solicitor and A's. Here it was held that there was no agreement, for the acceptance was not final but subject 1 Words spoken in jest do not constitute a contract. Keller v. Holderman, 11 Mich. 248, H. & W. 71; McClurg v. Terry, 21 N. J. Eq. 225, H. & W. 72. Nor do promises too indefinite for enforcement by the court. Sherman v. Kitsmiller, 17 S. & R. (Pa.) 45; H. & W. 157. Cf. Long v. Battle Creek, 39 Mich. 323. An agreement to pay "good wages " is too indefinite. Fairplay School Township v. O'Neal, 127 Ind. 95. to a discussion to take place between the agents of the parties. A made an offer of £1,450 for a property belonging to X. X accepted the offer, and sent a contract to A for signature. The contract contained, among other terms, a requirement that the purchaser should pay a deposit of £10 per cent., and should complete the purchase on a certain day, and a condition as to the title to the property. A declined to carry out the transaction, and it was held that the acceptance introduced terms which were no part of the offer, and so did not conclude the contract.1 Jones v. 2 Daniel, 1894, Ch. 332. Acceptance must also be identical in terms with the Hyde v. offer. Wrench, and iden tical with the terms A proposed to sell a farm to X for £1,000, X said he would give £950. A refused this offer, and then X said that he was willing to give £1,000. A declined to adhere of the to his original proposal, and X endeavoured to obtain proposal. specific performance of the alleged contract. But his offer to buy at £950 in answer to A's offer to sell at £1,000 was held to be a refusal of A's offer, and a counter proposal. He could not fall back on the original offer.2 Difficulties may arise on both these points where a contract is made out of a correspondence involving long negotiations. Where such correspondence appears to result in a definite offer and acceptance it is always necessary to inquire whether this offer and acceptance include all the terms in negotiation. Where the parties have come to terms, a subsequent revival of negotiations may amount to a rescission on one side, but does not alter the fact that a contract has been made. 1 Baker v. Holt, 56 Wis. 100; Fenno v. Weston, 31 Vt. 345. 2 Minneapolis &c. Ry. v. Columbus Rolling Mill, 119 U. S. 149, H. & W. 74; Weaver v. Burr, 31 W. Va. 736. E Hussey v. Horne Payne, 4 App. Ca. 311. Bellamy v. Debenham, 45 Ch. D. 481. Necessity for one of these marks law. CHAPTER II. Form and Consideration. OFFER and acceptance bring the parties together, and constitute the outward semblance of contract; but most systems of law require some further evidence of the intenin English tion of the parties, and in default of such evidence refuse to recognize an obligation. In English law this evidence is supplied by form and consideration: sometimes one, sometimes the other, sometimes both are required to be present in a contract to make it enforceable. By form we mean some peculiar solemnity attaching to the expression of agreement which of itself gives efficacy to the contract; by consideration we mean some gain to the party making the promise, arising from the act or forbearance, given or promised, of the promisee. History of the matter. Alike in English and Roman law, form, during the infancy of the system, is the most important ingredient in contract. The courts look to the formalities of a transaction as supplying the most obvious and conclusive evidence of the intention of the parties; the notion of consideration, if not unknown, is at any rate imperfectly developed. This is no place for an antiquarian discussion, however interesting, but we may say that English law starts, as Roman law probably started, with two distinct conceptions of contract. One, that any promise is binding if expressed in form of a certain kind: the other, that the acceptance of benefits of a certain kind implies an enforceable promise to repay them. The theory *that the Roman con[*44] history of tracts developed out of conveyance in an order of moral progression seems to rest on no sure evidence; and there is reason to believe that the earliest of them were Common features in Roman and English law. those with which we are familiar as the contracts verbis and re. The solemnities of a promise by formal question and answer bound the promisor to fulfil an intention thus expressed, and the readjustment of proprietary right where money or goods had been lent for consumption or use, led to the enforcement of the engagements known as mutuum and commodatum. In English law we find that before the end of the thirteenth century two analogous contracts were enforceable: one formal, the contract under seal; one informal, arising from sale and delivery of goods, or loan of money, in which consideration had passed on one side, and an implied or express promise to repay would support an action of debt. Beyond this, the idea of enforcing an informal promise, simply because a benefit was accruing or was about to accrue to the promisor by the act or forbearance of the promisee, does not appear to have been entertained before the middle or end of the fifteenth century. The formal contract of English law is the contract under The formal seal. Only by the use of this form could an executory English contract in contract be made binding, until the doctrine of considera- law. It is probably due to the influence of the court of chancery, that later on the common law courts begin to take account of the intention of the parties. The idea of the importance of form thenceforth undergoes a curious. change. *When a contract comes before the courts, evidence is required that it expresses the genuine intention of the parties; and this evidence is found either [*45] The informal promise. Remedies of promise in Brac ton. in the solemnities of the contract under seal, or in the presence of consideration, that is to say, in some benefit to the promisor or loss to the promisee, granted or incurred by the latter in return for the promise of the former. Gradually consideration comes to be regarded as the important ingredient in contract, and then the solemnity of a deed is said to make a contract binding because it 'imports consideration,' though in truth it is the form which, apart from any question of consideration, carries with it legal consequences. But we must return to the informal promise. I have said that the only contracts which English law originally recognized, were the formal contract under seal, and the informal contract in which consideration was executed upon one side. How then do we arrive at the modern breadth of doctrine that any promise based upon consideration is binding upon the promisor? This question resolves itself into two others. How did informal executory contracts become actionable at all? How did consideration become the universal test of their actionability? To answer the first question we must look to the remefor breach dies which, in the early history of our law, were open to persons complaining of the breach of a promise, express or implied. The only actions of this nature, during the thirteenth and fourteenth centuries, were the actions of covenant, of debt, and of detinue. Covenant lay for breach of promises made under seal: debt for liquidated or ascertained claims, arising either from breach of covenant, or from non-payment of a sum certain, due for goods supplied, work done, or money lent: detinue" lay for the recovery of specific chattels *kept back by the defend[*46] ant from the plaintiff. These were the only remedies based upon contract. An executory agreement therefore, unless made under seal, was remediless. Bryant v. 3 C. P. D. a The Court of Appeal has decided that the action of detinue is founded in tort. But though the wrongful detention of goods is the cause of action, the remedy may apply to cases in which the possession of the goods originated in the contract of bailment. [See judgment of Brett, L.J., at p. 392.] |