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additional requirement to that of expressed mutual assent already stated. If there has been an expression of mutual assent, the fact that the expression was made under a mistake or induced by fraud, duress, or under undue influence, will not prevent the formation of a contract if there was assent, however induced, to make the expression in question. In some instances it is true there may seem at first sight to be an expression of mutual assent, and yet, in fact, be no such expression because the acts of apparent assent, when their real meaning is discovered, do not in truth indicate assent. In other cases because the assent has been induced improperly, the contract may be avoided by one of the parties to it, but it is of vital importance to distinguish between a voidable contract and an agreement which lacks altogether the essential requisites of a contract. Fraud, mistake and duress generally are personal or equitable defenses to a contract, and where they actually prevent the formation of a contract they do so because no proper expression of mutual assent existed-not because the assent was not "genuine." A contrary view is indeed common, and finds some warrant in the language of the cases, especially of decisions in equity, and text writers have drawn broad conclusions from such language. Thus in Ashburner's Principles of Equity, the learned author says: "If A. offers to sell Whiteacre to B for £1,000,, and in his offer writes sell when he meant let, or Whiteacre when he meant Blackacre, or £1,000 when he meant £2,000, his mistake lies in a discrepancy between his mental offer and his outward expression; and although B accepts in the bona fide belief that A meant what he had written, there is not in reality a concluded contract between the parties. If A is bound to carry out his written offer, he is bound not on the ground of contract, but on the ground of estoppel; and there seems no reason why he should be bound unless A has altered his position on the faith of the apparent offer."

See infra, §§ 94, 95,' 1535–1537.

7 See infra, § 601 et seq. as to what is the "real meaning" of the parties' expressions.

P. 369.

'The even more extraordinary state

8

ment is made in 20 Amer. & Eng. Encyc. of Law (2d ed.), page 809: "Courts of equity, in exercising the powers of rescission and reformation, do not operate upon contracts at all, but merely upon what erroneously

In most instances it would make little practical difference whether it was said that the mental assent of the parties was the vital element in the formation of the contract, and that their words or acts proved their mental attitude, or whether it was said that their words and acts were the only essential matter in the formation of a contract. In some cases, however, the distinction is important. If it were true that the mental element was the vital matter the consequences would properly follow, as the writer just quoted suggests, that unless the other party has altered his position in reliance on the mistaken expression, there would be no obligation, and even if there were such alteration of position the obligation would be based on estoppel rather than on contract. There seems no trace of such a doctrine in courts of law, and such equity decisions as may afford some warrant for it may be explained as well or better on the theory that a contract exists but is voidable, as on the ground that no contract exists. 10 Indeed if the view here criticised were sound there would have been little occasion for the exercise by courts of equity of a jurisdiction to rescind contracts for mistake. Wherever the difficulty is lack of such assent by one or both parties as is requisite for the formation of a contract, a court of law would be competent to treat the transaction as void. Yet equity took jurisdiction of the subject of mistake. Moreover, every term of an offer and acceptance is vital, and the two must be in complete accord. But a contract is not even voidable in equity because in some minor particular there was even a mutual mistake as to the meaning of the expressions used.

The parol evidence rule which is of such far reaching importance in determining the existence and meaning of contracts is based on the assumption that where a written memorial of the transaction is made its terms are conclusive. Such a rule is inconsistent with the view that the mental attitude or assent of the parties is the ultimate juridical fact to bę established. If it be said that the parol evidence rule merely

purport to be contracts." To say that a deed "erroneously purports" to be a contract or conveyance because the grantor was under an error in regard to

the property covered by it is likely to lead to confusion and mistaken conclusions.

10 See infra, § 1535 et seq.

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provides conclusive proof of the mental attitude of the parties, the reply is obvious that to express the law in terms of conclusive presumptions is to express it in terms of fiction. If from A, B is always conclusively presumed, not B, but A is the essential factor.

Finally, the history of the common law is opposed to the view here criticised. The original basis of the action of assumpsit was consideration, and the essential feature of consideration was the justifiable reliance upon words or acts. The acceptor's justifiable reliance on the offeror's proposal is historically, and it is believed on proper analysis still law to-day, the basis of contract. The view here criticised was developed as part of the system of philosophy, law and economics, which, during the first half of the nineteenth century laid emphasis on the will. This philosophy has had great influence on the law of the continent of Europe and through the writings of Savigny especially, whose theories of the formation of contracts were made familiar to English and American readers by Sir Frederick Pollock, and others, has served to obscure the true foundation of the English law of contracts.

§ 21. Intent to contract.

The further statement of Savigny which has been popularized for English and American lawyers by Sir Frederick Pollock and others, that not only mental assent to a promise in fact, but an intent to form a legal relation is a requisite for the formation of contracts, is part of the same system criticised in the preceding section, and cannot be acceptedЛ1 Such a repetition of a rule of the civil law shows the danger of assuming that a sound principle in that law may be successfully transplanted. Nowhere is there greater danger in attempting such a transfer than in the law governing the formation of contracts. In a system of law which makes no requirement of consideration, it may well be desirable to limit enforceable promises to those where a legal bond was contem

11 Pollock on Contracts (8th ed.), page 3, states that "it must be the intention of the parties that the matter in hand shall, if necessary, be so dealt with [i. e., by, a Court of Justice], or at

least they must not have a contrary intention." The last clause of this statement may be admitted. See also Koenigsberg v. Blau, 127 N. Y. Supp. 602.

plated, but in a system of law which does not enforce promises unless some benefit to the promisor or detriment to the promisee has been asked and given, there is no propriety in such a limitation. The only proof of its existence will be the production of cases holding that though consideration was asked and given for a promise, it is, nevertheless, not enforceable because a legal relation was not contemplated. On the contrary, the assertion is ventured that the common law does not require any positive intention to create a legal obligation as an element of contract.12 The views of parties to an agreement as to what are the requirements of a contract, as to what mutual assent means, or consideration, or what contracts are enforceable without a writing, and what are not, are wholly immaterial. They are as immaterial as the views of an individual as to what constitutes a tort. In regard to both torts and contracts, the law, not the parties, fixes the requirements of a legal obligation. 13 It would indeed be possible for a system of contractual law to adopt as a principle that wherever the parties intended legal obligation, then and then only the law would create one, and such an idea seems to have developed and to have had considerable acceptance on the Continent of Europe; 14 but it is foreign to the common law and, it may be added, is intrinsically objectionable. Parties to an informal transaction frequently are not thinking of legal obligations. They intend an exchange, a gift, or to induce action by the other parties when they make promises, and to make the obligation of such promises depend upon the accident of the promisor's reflection on his legal situation is unfortunate. It may be guessed that where it is stated that an intent to

12 In considering the liability of a member of a voluntary association on contracts made on behalf of the association, the Connecticut court said: "It is of no legal significance that the defendants did not intend to be individually responsible, or that they did not know or believe that as a matter of law they would be." Davidson v. Holden, 55 Conn. 103, 112, 10 Atl. 515. Consider also contracts imposed upon promoters. See infra, § 306.

13 In Hotchkiss v. Nat. City Bank, 200 Fed. 287, 293 (aff'd 231 U. S. 50, 58 L. Ed. 115, 34 Sup. Ct. 20), L. Hand, J., said: "A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent."

14 See Lorenzen, 28 Yale L. J. 621.

create a legal relation is the test of a contract, the intent is frequently fictitiously assumed; and that a deliberate promise seriously made is enforced irrespective of the promisor's views regarding his legal liability. It is indeed true that if the parties to an agreement undertake that no legal obligation shall be created, their undertaking in this regard will be respected by the law as would any other term of their agreement.15 Consequently if both parties indicate that their words are merely in joke, no contract will be formed. 16 So where words appropriate to an offer are used evidently merely as a boast or explosion of wrath so that no reasonable person would be justified in taking them literally, no contract will result from an acceptance." But if a reasonable person would understand the words used as importing that the speaker promised to do something if given a requested exchange therefor, it is immaterial what intention the offeror may have had.18 There seems no reason why merely social engagements

15 Central Bitulithic Paving Co. v. Highland Park, 164 Mich. 223, 129 N. W. 46. "A promise made with an understood intention that it is not to be legally binding, but only expressive of a present intention, is not a contract. Thruston v. Thornton, 1 Cush. 89;" Wellington v. Apthorp, 145 Mass. 69, 74, 13 N. E. 10.

Keller v. Holderman, 11 Mich. 248, 83 Am. Dec. 737; McClurg v. Terry, 21 N. J. Eq. 225; Theiss v. Weiss, 166 Pa. 9, 31 Atl. 63, 45 Am. St. Rep. 638; Bruce v. Bishop, 43 Vt. 161; Nyulasy v. Rowan, 17 Vict. L. R. 663. The intent of one party to make a jest will not deprive his words of their natural meaning, however, and if the other understands, and has reason to do so, that the words are seriously intended, a contract will result. Plate v. Durst, 42 W. Va. 63, 24 S. E. 580, 32 L. R. A. 404. The earliest statements in English law to the effect that promises made in jest are not obligatory relate to promises of marriage, which were governed by the civil law conception of obligations as developed

in the canon law. See The Lady's Law (2d ed., 1737), p. 29; Swinburne on Spousals (2d ed., 1711), p. 210. It is more in the spirit of the early common law to hold parties to the consequences of their acts even though each knew the other intended a jest.

17 Higgins v. Lessig, 49 Ill. App. 459. The defendant after the theft of harness, worth $15, said with rough language and epithets concerning the thief: "I will give $100 to any man who will find out who the thief is, and I will give a lawyer $100 for prosecuting him." The court held that these words should be regarded as "the extravagant exclamations of an excited man" and that the plaintiff had no right to consider them an offer.

18 In Hoggard v. Dickerson, 180 Mo. App. 70, 165 S. W. 1135, 1137, the court said "The defendant had the benefit of an instruction to the effect that if the offer of reward for the capture or arrest of the slayer of Stanley Ketchel was made by defendant [the offeror] while laboring under strong excitement and without any intention