Frederick Pollock

“ On the whole the modern doctrine is to some such effect as the following:—
The proposer of a contract can prescribe or authorize any mode, or at least any reasonable mode, of acceptance, and if he specifies none he is deemed to authorize the use of any reasonable mode in common use, and especially the post. Acceptance in words is not always required; an offer may be well accepted by an act clearly referable to the proposed agreement, and constituting the whole or part of the performance asked for—say the despatch of goods in answer to an order by post, or the doing of work bespoken ”

“ A rule which can take effect against the judicially known will of the parties is not a rule of construction or interpretation, but a positive rule of law. However artificial some rules of construction may seem, this test will always hold. In modern times the courts have avoided laying down new rules of construction, preferring to keep a free hand and deal with each case on its merits as a whole. It should be observed that the fulfilment of a contract may create a relation between the parties which, once established, is governed by fixed rules of law not variable by the preceding agreement. ”

“ Again, there are cases where an agreement may be made and performed without offending the law, but on grounds of “public policy” it is not thought right that the performance should be a matter of legal obligation, even if the ordinary conditions of an enforceable contract are satisfied. A man may bet, in private at any rate, if he likes, and pay or receive as the event may be; but for many years the winner has had no right of action against the loser. ”

“ Contract and conveyance, again, are distinct in their nature, and sharply distinguished in the classical Roman law. But in the common law property in goods is transferred by a complete contract of sale without any further act, and under the French civil code and systems which have followed it a like rule applies not only to movables but to immovables. In English law procuring a man to break his contract is a civil wrong against the other contracting party, subject to exceptions which are still not clearly defined. ”

“ Yet we shall find that the importance of contract is developed comparatively late in the history of law. The commonwealth needs elaborate rules about contracts only when it is advanced enough in civilization and trade to have an elaborate system of credit. ”

“ Married women were incapable by the common law of contracting in their own names. At this day they can hold separate property and bind themselves to the extent of that property—not personally—by contract. ”

“ Those who desire to be assured of anything that lies in promise must exact an oath, or a pledge, or personal sureties; and even then the court of their people—in England the Hundred Court in the first instance—will do nothing for them in the first case, and not much in the two latter. Probably the settlement of a blood-feud, with provisions for the payment of the fine by instalments, was the nearest approach to a continuing contract, as we now understand the term, which the experience of Germanic antiquity could furnish. ”

“ The Roman law of the empire dealt with contract, indeed, in a fairly adequate manner, though it never had a complete or uniform theory; and the Roman law, as settled by Justinian, appears to have satisfied the Eastern empire long after the Western nations had begun to recast their institutions, and the traders of the Mediterranean had struck out a cosmopolitan body of rules and custom known as the Law Merchant, which claimed acceptance in the name neither of Justinian nor of the Church, but of universal reason. ”

“ As to promises obviously absurd or impossible from the first, they are unenforceable only on the ground that the parties cannot have seriously meant to create a liability. For precisely the same reason, supported by the general usage and understanding of mankind, common social engagements, though they often fulfil all other requisites of a contract, have never been treated as binding in law. ”

“ By Maine’s introduction, Stephen became a member of the Cambridge society known as the Apostles, in form not very different from many other essay societies, in substance a body with an unformulated but most individual tradition of open-mindedness and absolute mutual tolerance in all matters of opinion. Perhaps the golden age of the society was a few years before Stephen’s election, but it still contained a remarkable group of men who afterwards became eminent in such different ways as, for instance, James Clerk Maxwell and Sir William Harcourt. ”

“ Acts fitted to convey to a reasonable man the proposal of an agreement, or the acceptance of a proposal he has made, are as good in law as equivalent express words. The term “implied contract” is current in this connexion, but it is unfortunately ambiguous. It sometimes means a contract concluded by acts, not words, of one or both parties, but still a real agreement; sometimes an obligation imposed by law where there is not any agreement in fact, for which the name “quasi-contract” is more appropriate and now usual. ”

“ Disappointment of expectations is unpleasant, but it is not of itself damnum in a legal sense. To sum up the effect of this in modern language, the plaintiff must have given value of some kind, more or less, for the defendant’s undertaking. This something given by the promisee and accepted by the promisor in return for his undertaking is what we now call the consideration for the promise. In cases where debt would also lie, it coincides with the old requirement of value received (quid pro quo) as a condition of the action of debt being available. ”

“ The liability for necessaries is now declared by legislative authority in the Sale of Goods Act 1893; the modern doctrine is that it is in no case a true liability on contract. There is an obligation imposed by law to pay, not the agreed price, but a reasonable price. Practically, people who give credit to an infant do so at their peril, except in cases of obvious urgency. ”

“ The rights created by contract are personal rights against the promisors and their legal representatives, and therefore different in kind from the rights of ownership and the like which are available against all the world. ”

“ So the sealed writing was final too, and a man could not deny his own deed. We still say that he cannot, but with modern refinements. Thus the deed, being allowed as a solemn and probative document, furnished a means by which a man could bind himself, or rather effectually declare himself bound, to anything not positively forbidden by law. ”

“ On the whole, in the old common law one could do a great deal by deed, but very little without deed. The minor bargains of daily life, so far as they involved mutual credit, were left to the jurisdiction of inferior courts, of the Law Merchant, and—last, not least—of the Church.
Popular custom, in all European countries, recognized simpler ways of pledging faith than parchment and seal. A handshake was enough to bind a bargain. Whatever secular law might say, the Church said it was an open sin to break plighted faith ”

“ Misdescription of real property on a sale, without fraud, may according to its importance be a matter for compensation or for setting aside the contract. Promoters of companies are under special duties as to good faith and disclosure which have been worked out at great length in the modern decisions. ”

“ In all matters of contract, as we have said, the ascertained will of the parties prevails. But this means a will both lawful and free. Hence there are limits to the force of the general rule, fixed partly by the law of the land, which is above individual will and interests, partly by the need of Illegality. securing good faith and justice between the parties themselves against fraud or misadventure. Agreements cannot be enforced when their performance would involve an offence against the law. ”

“ Where a promise and not an act is sought (as where a tradesman writes a letter offering goods for sale on credit) , it must be communicated; in the absence of special direction letter post or telegraph may be used; and, further, the acceptor having done his part when his answer is committed to the post. English courts now hold (after much discussion and doubt) that any delay or miscarriage in course of post is at the proposer’s risk, so that a man may be bound by an acceptance he never received. ”

“ In 1877 Stephen was made a Knight Commander of the Star of India, and in 1878 he received the honorary degree of D.C.L. at Oxford. Early in 1879 he was appointed judge of the queen's bench division. He held that office a little more than eleven years. The combination of mature intellectual patience and critical subtlety which marked the great masters of the common law was not his, and it cannot be said that he made any considerable addition to the substance of legal ideas. His mind was framed for legislation rather than for systematic interpretation and development. ”

“ There are many cases in which a statement made by one party to the other about a material fact will enable the other to avoid the contract if he has relied on it, and it was in fact untrue, though it may have been made at the time with honest belief in its truth. ”

“ If the success of the later Anglo-Indian Codes has not been quite so complete as that of the Penal Code, they have, on the whole, done excellent service, and they are at least as good as any European codification prior to the very recent achievements of scientific lawyers in Italy and Germany. Besides the special work of legislation, Stephen had to attend to the current administrative business of his department, often heavy enough to occupy the whole of an ordinary able man’s attention, and he took his full share in the general deliberations of the viceroy’s council. ”

“ Inducing a man by deceit to enter into a Fraud. contract may always be treated by the deceived party as a ground for avoiding his obligation, if he does so within a reasonable time after discovering the truth, and, in particular, before any innocent third person has acquired rights for value on the faith of the contract (see Fraud) . Coercion would be treated on principle in the same way as fraud, but such cases hardly occur in modern times. ”

“ Nothing really stands in the way of a practically complete code of maritime and commercial law for the United Kingdom but the difficulty of finding time in the House of Commons for non-contentious legislation; and whenever this is achieved, the result will in substance be largely due to Sir James Stephen's efforts. Meanwhile, in addition to his other occupations, Stephen was an active member of the Metaphysical Society (see Knowles) , and he carried on an intimate corre- spondence with Lord Lytton, then viceroy of India, during the critical period of the second Afghan War. ”

“ Stephen served as secretary to a royal commission on popular education, which was more fortunate than most commissions in having prompt effect given to its conclusions. In 1859 he was appointed recorder of Newark. In 1863 he published his General View of the Criminal Law of England (not altogether superseded by the second edition of 1890, which was practically a new book) . This was really the first attempt that had been made since Blackstone to explain the principles of English law and justice in a literary form, and it had a thoroughly deserved success. ”

“ The builder, instead of doing bad work, does nothing at all within the time agreed upon for completing the house. Can it be said that he has done a wrong? At first the judges felt bound to hold that this was going too far; but suitors anxious to have the benefit of the king’s justice persevered, and in the course of the 15th century the new form of action, called assumpsit from the statement of the defendant’s undertaking on which it was founded, was allowed as a remedy for non-performance as well as for faulty performance. ”

“ The question what amounts to final acceptance of an offer is, on the other hand, a question ultimately depending on common sense, and must be treated on similar lines in all civilized countries where the business of life is carried on in a generally similar way. ”

“ A contract made with a person deprived by unsound mind or intoxication of the capacity to form a rational judgment is on the same footing as a contract obtained by fraud, if the want of capacity is apparent to the other party. ”

“ But, apart from the risk of starting fresh problems as hard as the old ones, English principles, as above said, require a contract to be concluded between the parties at one point of time, and any exception to this would have to be justified by very strong grounds of expediency. We have already assumed, but it should be specifically stated, that neither offers nor acceptances are confined to communications made in spoken or written words. Acts or signs may and constantly do signify proposal and assent. One does not in terms request a ferryman to put one across the river. ”

“ Mr G. W. Forrest's later research in the archives of the government of India had tended to confirm the judicial protest, at any rate as regards Macaulay's grosser charges.
The one thing of which Stephen was least capable—among other things possible to a good man and a good citizen—was sparing himself. He had one or two warnings which a less energetic man would have taken more seriously. ”

“ So far he was a literary lawyer, also possibly with chances (diminished by his vehement dislike for party politics) of regular professional advancement, possibly not free from the temptation to turn wholly to literature. The decisive point of his career was in the summer of 1869, when he accepted the post of legal member of council in India. Fitzjames Stephen’s friend Maine was his immediate predecessor in this office. Guided by Maine’s comprehensive genius, the government of India had entered" on a period of systematic legislation which was to last about twenty years. ”