I
take up the former class of cases first.
When a contract fails to be made, although the usual forms have
been gone through with, the ground of failure is commonly said to
be mistake, misrepresentation, or fraud. But I shall try to show
that these are merely dramatic circumstances, and that the true
ground is the absence of one or more of the primary elements,
which have been shown, or are seen at once, to be necessary to
the existence of a contract.
If a man goes through the form of making a contract with A
through B as A's agent, and B is not in fact the agent of A,
there is no contract, because there is only one party. The
promise offered to A has not been accepted by him, and no
consideration has moved from him. In such a case, although there
is generally mistake on one side and fraud on the other, it is
very clear that no special [309] doctrine need be resorted to,
because the primary elements of a contract explained in the last
Lecture are not yet present.
Take next a different case. The defendant agreed to buy, and the
plaintiff agreed to sell, a cargo of cotton, "to arrive ex
Peerless from Bombay." There were two such vessels sailing from
Bombay, one in October, the other in December. The plaintiff
meant the latter, the defendant the former.
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