But these concessions do not affect the view here taken. As the
relation of contractor and contractee is voluntary, the
consequences attaching to the relation must be voluntary. What
the event contemplated by the promise is, or in other words what
will amount to a breach of contract, is a matter of
interpretation and construction. What consequences of the breach
are assumed is more remotely, in like manner, a matter of
construction, having regard [303] to the circumstances under
which the contract is made. Knowledge of what is dependent upon
performance is one of those circumstances. It is not necessarily
conclusive, but it may have the effect of enlarging the risk
assumed.
The very office of construction is to work out, from what is
expressly said and done, what would have been said with regard to
events not definitely before the minds of the parties, if those
events had been considered. The price paid in mercantile
contracts generally excludes the construction that exceptional
risks were intended to be assumed. The foregoing analysis is
believed to show that the result which has been reached by the
courts on grounds of practical good sense, falls in with the true
theory of contract under the common law.
The discussion of the nature of a promise has led me to analyze
contract and the consequences of contract somewhat in advance of
their place.
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