Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

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i.e. seizure of all property, as an alternative. And in both cases the terms of the agreement are settled by the Court. Similarly there is a tendency in both systems to give the name 'contract' to states of fact which have nothing to do with agreement. Thus Gaius classes under contract the obligation to refund money paid by mistake, and, in our law, the same liability is described as a contract implied in law. It may be that, at least for Roman law, this survives from an earlier state of things in which contractus has nothing to do, strictly, with consent, and is hardly more than another name for obligatio.1 The verb 4to contract', contrahere^ is used in this wider sense in both systems. There are other ways of 'contracting an obligation' than by contract. In any case the distinction is made clear in later law, and such things are called 'quasicontract'; and the same usage is gradually creeping into our law.2 The first branch of obligation for us to consider is contract in the ordinary sense.

2. REALITY OF CONSENT IN CONTRACT

This was dealt with in practice much as it is with us. Duress and fraud did not of themselves make the contract void, but they entitled the aggrieved party to have it set aside. But where mere mistake affected a contract it avoided it on the ground that there was no real consent. And the detailed working out of the rules was similar, though not quite identical. Thus, under our system, where a contract has been procured by fraud not inducing a mistake fundamental enough to preclude the formation of any contract at all3 and is thus valid till set aside, it is sometimes possible for the fraudulent party to confer rights on third parties while the contract is still standing, and these rights

1 For English law the explanation lies in the gradually extended use of the action of indebitatus assumpsit. See Plucknett, Concise History of the

Common Law, 5th ed. pp. 647, 648.

2 We need not pay much attention to Coke's 'in any contract there must be quid pro quo, for contractus est quasi actus contra actum', Co. Litt. 47 b.

3 Cundy v. Lindsay (1878), 3 App. Cas. 459.

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'quamvis si liberum esset noluissem, tamen coactus volui \* But this is only explaining an ancient rule in the light of a much more recent theory.

The Roman conception of fraud in contract was in some ways more severe than ours. With us it must be shown that the fraud induced the contract: in Rome it sufficed that there was serious fraud, which had misled. This difference is perhaps little more than verbal, since res ipsa loquitur, and inducement will readily be inferred if the fraud was serious, and hardly if it was not. Another difference is more important. On the texts non-disclosure of known material defects, e.g. in a thing sold, was dolus, and enabled the other party to defend action on the contract or recover damages, under the ex fide bona clause in the action. The rule was retained in the modern Pandektenrecht, and is embodied in the German Blirgerliches Gesetzbuch, and in the French Code Civil. Indeed continental critics have made it a reproach to our law of sale of goods,

as expressing a low commercial morality, that it does not contain this rule.2

Innocent misrepresentation is not a ground of avoidance in Roman law or in the modern systems derived from it. If it is wilful it is fraud. If though not wilful it amounts to an undertaking, then it is a term in the contract and its falsity is a breach of contract, giving a right of action: it has nothing to do with reality of assent.3 The same result is reached in Roman law in cases like Bannerman v. White* as in ours. But if it is neither wilful nor a term in the contract, then it is in itself, for Roman law, indifferent—it

1D. 4. 2. 21. 5.

2But in part the conditions and warranties implied by the Sale of Goods Act go far, as interpreted, to reduce the maxim caveat emptor to a nullity, especially where unascertained goods are concerned. See also pp. 285—286.

3D. 18. 1. 45. But since innocent misrepresentation always induces error, and the bounds of relevant error are wider in civil law systems than in English law, the same result can often be attained.

4(1861), 10C.B.N.S. 84.

REALITY OF CONSENT IN CONTRACT I 99

gives no right to rescission of the contract as it now does with us.1 But if it has led to a mistake, and it is only in such an event that the question is likely to arise, the question whether the contract will be avoided or not depends on the rules of mistake, not innocent misrepresentation. Whether in our law a contract so affected by innocent misrepresentation is voidable, like one affected by fraud of certain kinds, or void, but so that the maker of the representation is estopped from setting up this fact, is not altogether clear on the cases.

The rubric of mistake as an element in the law of formation of contract came into Roman law only rather late, together with a clear recognition of the essential dependence of contract on consent. In our law it seems a very late comer indeed, at least on the common law side. It seems to result from an adoption, a little before the time of the Judicature Acts, as a test of validity at common law, of a principle which had long been applied in. equity as a test for the applicability of equitable remedies. The essence of mistake, that is to say fundamental, material, mistake, the kind which precludes the formation of a contract, is that the error must be such as to negative consent. As our Courts have said, it must be such that the minds of the parties are not ad idem, though how much they must be ad idem our law has never defined with precision: it has preferred to deal with each case as it has arisen.2 There can hardly be a contract in which both parties are fully and correctly informed on all the facts which might influence the mind in determining whether to make the contract or not. If the existence of any false impression were to vitiate the contract, there could hardly be any law of contract. Some test is therefore wanted to determine what error is sufficient. Obviously, importance is a main factor, but that is too vague to serve. The question whether the

1Redgrave v. Hurd (1881), 20 Ch.D. 1. But the right to rescission is not unqualified.

2See Cockburn, C.J. in Smith v. Hughes (1871), L.R. 6 Q.B. at p. 606.

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out. One cause for this uncertainty is attributable to the provisions of the Judicature Act, 1873.1 Before the passing of that Act it had been the practice of the Court of Chancery in the exercise of its discretion to refuse the remedy of specific performance or to order rescission on such terms as appeared just, whether or not the contract in question was one which would have been void at common law. The Judicature Acts now direct the common law Divisions to grant the same relief as ought to have been given by the Court of Chancery before the passing of the Acts, and provide that in the event of conflict or variance between the rules of equity and common law the former shall prevail. Thus common law Courts can give specific performance and grant rescission, and the Acts appear to mean that they can give and refuse these remedies where the Court of Chancery would have done so. What is not yet quite clear is whether certain contracts which would have been declared void at common law should now instead be liable to be set aside on terms in equity.2

Moreover both Courts and text-books have a habit of citing, as authorities on the law of mistake, cases (often cases in equity) in which not a word was said about mistake and which depend on quite different principles.3 Thus Raffles v. Wtchelhaus appears very commonlyA Here there was an agreement to buy goods * ex Peerless from Bombay'. There were two ships answering that description and each party had a different one in mind. The agreement was held void, but this was a case of incurable ambiguity. If indeed one of the ships had been called 'Peeress*, the

1Sections 24, 25; see now Judicature Act, 1925, ss. 36-44.

2See SoIIe v. Butcher [1950] 1 K.B. 671, discussed post, pp. 212, 213;

but cf. Ingram v. Little [ 1961 ] 1 Q.B. 31. See also Anson, Law of Contract, 21st ed. pp. 275, 276.

3See 'The Myth of Mistake in the English Law of Contract' (1954) 70 L.Q.R. 385 (C.J.Slade).

4(1864), 2 H. and C. 906. It is badly reported.

REALITY OF CONSENT IN CONTRACT 2O3

question of mistake might at least have been raised. In Smith v. Hughes,1 where a new trial was ordered, the purchaser agreed to buy oats believing that the oats offered were old oats, whereas the oats which the vendor intended to sell and which were delivered to the plaintiff were new oats: it appears from the judgements that a finding by the jury to the effect that the vendor knew of the purchaser's self-deception, and took no steps to remove it, would not vitiate the contract. A Roman Court would no doubt have held the same so far as error is concerned, if only because the error could not be said to be fundamental enough to be error in substantia. But it would probably have regarded the case as one of fraud and rescinded the contract on that account.2 The Court went on to say that it would have been different if the buyer had thought he was being actually promised old oats and the vendor knew this. The Roman law would have said the same, but would have put it on the ground of fraud, and the language of Hannen J. in which this last proposition is stated seems to treat it rather as fraud than as mistake.

Cases of impossibility also sometimes appear under the rubric of mistake. Where the contract is plainly, on the face of it, for an impossibility 'in the nature of things', it is void in both systems, apparently on the ground that it cannot have been seriously meant.3 Where the impossibility is not obvious but is due to the fact that the subjectmatter of the contract has ceased to exist, the contract is void in Roman law if both parties were in ignorance.4 But, we are told, if the vendor alone knew, there is no sale, and if the buyer alone knew, the sale is good and he must pay the price, though he does not get the thing.5 It is

1(I8 7 I),L . R . 6Q . B . 597.

2See the very similar case in D . 19. 1. 11. 5.

3 G. 3. 97; D . 45. 1. 35; D . 44. 7. 31. See Anson, Law of Contract,