They call only for the absence of
certain false representations. The condition is not that the
promisee shall be a certain other B, or that the contents of the
barrel shall be mackerel, [326] but that the promisee has not
lied to him about material facts.
Then the question arises, How do you determine what facts are
material? As the facts are not required by the contract, the only
way in which they can be material is that a belief in their being
true is likely to have led to the making of the contract.
It is not then true, as it is sometimes said, that the law does
not concern itself with the motives for making contracts. On the
contrary, the whole scope of fraud outside the contract is the
creation of false motives and the removal of true ones. And this
consideration will afford a reasonable test of the cases in which
fraud will warrant rescission. It is said that a fraudulent
representation must be material to have that effect. But how are
we to decide whether it is material or not? If the above argument
is correct, it must be by an appeal to ordinary experience to
decide whether a belief that the fact was as represented would
naturally have led to, or a contrary belief would naturally have
prevented, the making of the contract.
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