Historical Reprints History SUMMARY OF THE LAW OF CONTRACTS


Catalog # SKU0763
Publisher TGS Publishing
Weight 1.00 lbs
Author Name C.C. Langdell



TGS Historical Reprint Series



1. According to the popular apprehension of the term, a promise is the act of the promisor alone; but in truth it requires also an act of the promisee. Before any act by the promisee, the so-called promise is in law only an offer, called by the Romans a pollicitation. It is not until it is accepted by the promisee that it becomes in law a promise.

A promise is in this respect like a gift of property, which is commonly supposed to be the act of the donor alone, but which requires the acceptance of the donee to pass the title to the property.

2. The acceptance of an offer, however, differs materially from the making of an offer. The former requires, it seems, a mental act only; and clearly it does not, like the making of an offer, require a communication from the person making it to the person to whom it is made. Indeed, it is well settled as to a gift of property that no acceptance by the donee need be proved in order to complete the gift; for, as a gift is presumptively a benefit to the donee, the law will presume an acceptance of it by him in the absence of evidence to the contrary. And there is no reason to doubt that the same rule is applicable to a promise made as a gift, though no such question can arise in our law as to an ordinary promise not under seal, since every such promise requires a consideration to support it, and hence can never constitute a gift. As to all such promises, therefore, there must be a physical act on the part of the promisee to complete them, namely, giving or performing the consideration; and, though the thing specified by the offerer as the consideration of his proposed promise may be given or done without accepting the offer, yet it will not in that case be given or done as the consideration (and hence will not inure as the consideration) of the proposed promise.

Therefore, though the acceptance of an offer and the performance of the consideration are different things, and though the former does not imply the latter, yet the latter does necessarily imply the former; and, as the want of either is fatal to the promise, the question whether an offer has been accepted can never in strictness become material in those cases in which a consideration is necessary; and for all practical purposes it may be said that the offer is accepted in such cases by giving or performing the consideration.

3. Thus the public offer of a reward for the discovery and conviction of the perpetrator of a crime is an offer to any person who will accept it and perform the consideration; and the performance of the specified services will be prima facie evidence of a compliance with the offer in both respects; but it may be shown not to have been a compliance with it in either respect, e.g. by showing that the services were all performed in ignorance that the reward had been offered.

In Fitch v. Snedaker it appeared that a part of the services were performed in ignorance that the reward had been offered, and even before it was offered, and therefore that the consideration for the reward had not been performed, i.e. not the whole of it; but the performance of the remainder of the services after the offer of the reward became known to the plaintiffs would probably have shown an acceptance of the offer, though that fact would not have been material. In Williams v. Carwardine, the finding of the jury showed that, though the plaintiff had fully performed the services specified in the offer, she had neither accepted the offer nor performed the consideration; and yet it was held (erroneously, semble) that she was entitled to recover.

4. As the performance of the consideration is what converts an offer into a binding promise, it follows that the promise is made in legal intendment at the moment when the performance of the consideration is completed. It also follows that up to that moment the offer may either be revoked, or be destroyed by the death of the offerer, and the offeree thus be deprived of any compensation for what he has done.

As this may cause great hardship and practical injustice, ingenious attempts have been made to show that the offer becomes irrevocable as soon as performance of the consideration begins; but such a view seems to have no principle to rest upon. Besides, there may be hardship on the other side as well; for the offeree may at any stage refuse to proceed further in performing the consideration, or he may die, and then the offerer will confessedly be without remedy. The true protection for both parties is to have a binding contract made before performance begins, by means of mutual promises; and if they neglect this precaution, any hardship that they may suffer should be laid at their own doors.

It may be urged that the offer is accepted (and thus converted into a promise) the moment the performance of the consideration begins; and though the promise at first is not binding for want of a consideration, yet, being a promise and not an offer, it is irrevocable; and in the event of the consideration being afterwards performed, it will become binding. Such a view, however, would be fanciful and unsound.

It does not follow that an offer becomes a promise because it is accepted; it may be, and frequently is, conditional, and then it does not become a promise until the conditions are satisfied; and in case of offers for a consideration, the performance of the consideration is always deemed a condition. A promise must have a consideration when it is made, or it can never have one. Besides, the view in question would not even serve the purposes of substantial justice, as it would protect the offeree, while leaving the offerer wholly unprotected.

Historical Reprint - From 1880

Softbound, 5x8, 283 pages

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