If there is a mistake as to a fact not mentioned in the contract,
it goes only to the motives for making the contract. But a [315]
contract is not prevented from being made by the mere fact that
one party would not have made it if he had known the truth. In
what cases a mistake affecting motives is a ground for avoidance,
does not concern this discussion, because the subject now under
consideration is when a contract is made, and the question of
avoiding or rescinding it presupposes that it has been made.
I think that it may now be assumed that, when fraud,
misrepresentation, or mistake is said to make a contract void,
there is no new principle which comes in to set aside an
otherwise perfect obligation, but that in every such case there
is wanting one or more of the first elements which were explained
in the foregoing Lecture. Either there is no second party, or the
two parties say different things, or essential terms seemingly
consistent are really inconsistent as used.
When a contract is said to be voidable, it is assumed that a
contract has been made, but that it is subject to being unmade at
the election of one party. This must be because of the breach of
some condition attached to its existence either expressly or by
implication.
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