/1/ How far this ingenious
suggestion has had a practical effect on doctrine may perhaps be
doubted.
But it will be enough for the purposes of this general survey to
deal with bilateral contracts, where there are undertakings on
both sides, and where the condition implied in favor of one party
is that the other shall make good what he on his part has
undertaken.
The undertakings of a contract may be for the existence of a fact
in the present or in the future. They can be promises only in the
latter case; but in the former, they be equally essential terms
in the bargain.
Here again we come on the law of representations, but in a new
phase. Being a part of the contract, it is always possible that
their truth should make a condition of the contract wholly
irrespective of any question of fraud. And it often is so in
fact. It is not, however, every representation embodied in the
words used on one side which will [328] make a condition in favor
of the other party. Suppose A agrees to sell, and B agrees to
buy, "A's seven-year-old sorrel horse Eclipse, now in the
possession of B on trial," and in fact the horse is
chestnut-colored, not sorrel. I do not suppose that B could
refuse to pay for the horse on that ground.
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