/2/ The most
obvious of seeming exceptions is where the object not in fact so
identified, but only its covering or wrapper.
Of course the performance of a promise may be made conditional on
all the terms stipulated from the other side being complied with,
but conditions attaching to performance can never come into
consideration until a contract has been made, and so far the
question has been touching the existence of a contract in the
first instance.
A different case may be suggested from any yet considered.
Instead of a repugnancy between offer and assent which prevents
an agreement, or between the terms of an agreement which makes it
insensible on its fact, there may be a like repugnancy between a
term of the contract and a previous representation of fact which
is not expressly made a part of the contract. The representation
may have been the chief inducement and very foundation of the
bargain. It may be more important than any of the expressed
terms, and yet the contract may have [314] been reduced to
writing in words which cannot fairly be construed to include it.
A vendor may have stated that barrels filled with salt contain
mackerel, but the contract may be only for the barrels and their
contents. An applicant for insurance may have misstated facts
essential to the risk, yet the policy may simply insure a certain
building or a certain life.
Pages:
366
367
368
369
370
371
372
373
374
375
376
377
378
379
380
381
382
383
384
385
386
387
388
389
390