There is another ground for holding the charter-party void and no
contract, instead of regarding it as only voidable, which is
equally against authority, which nevertheless I have never been
able to answer wholly to my satisfaction. In the case put, the
representation of the lessor of the vessel [330] concerned the
vessel itself, and therefore entered into the description of the
thing the lessee agreed to take. I do not quite see why there is
not as fatal a repugnancy between the different terms of this
contract as was found in that for the sale of the barrels of salt
described as containing mackerel. Why is the repugnancy between
the two terms,--first, that the thing sold is the contents of
these barrels, and, second, that it is mackerel--fatal to the
existence of a contract? It is because each of those terms goes
to the very root and essence of the contract, /1/--because to
compel the buyer to take something answering to one, but not to
the other requirement, would be holding him to do a substantially
different thing from what he promised, and because a promise to
take one and the same thing answering to both requirements is
therefore contradictory in a substantial matter. It has been seen
that the law does not go on any merely logical ground, and does
not hold that every slight repugnancy will make a contract even
voidable.
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