If the contract is made by
word of mouth, there may be a large latitude in connecting words
of representation with later words of promise; but when they are
determined to be a part of the contract [323], the same
principles apply as if the whole were in writing.
The question now before us is the effect of a misrepresentation
which leads to, but is not a part of, the contract. Suppose that
the contract is in writing, but does not contain it, does such a
previous misrepresentation authorize rescission in any case? and
if so, does it in any case except where it goes to the height of
fraud? The promisor might say, It does not matter to me whether
you knew that your representation was false or not; the only
thing I am concerned with is its truth. If it is untrue, I suffer
equally whether you knew it to be so or not. But it has been
shown, in an earlier Lecture, that the law does not go on the
principle that a man is answerable for all the consequences of
all his acts. An act is indifferent in itself. It receives its
character from the concomitant facts known to the actor at the
time. If a man states a thing reasonably believing that he is
speaking from knowledge, it is contrary to the analogies of the
law to throw the peril of the truth upon him unless he agrees to
assume that peril, and he did not do so in the case supposed, as
the representation was not made part of the contract.
Pages:
378
379
380
381
382
383
384
385
386
387
388
389
390
391
392
393
394
395
396
397
398
399
400
401
402