But, on the other hand, when the repugnancy is between
terms which are both essential, it is fatal to the very existence
of the contract. How then do we decide whether a given term is
essential? Surely the best way of finding out is by seeing how
the parties have dealt with it. For want of any expression on
their part we may refer to the speech and dealings of every day,
/2/ and say that, if its absence would make the subject-matter a
different thing, its presence is essential to the existence of
the agreement. But the parties may agree that anything, however
trifling, shall be essential, as well [331] as that anything,
however important, shall not be; and if that essential is part of
the contract description of a specific thing which is also
identified by reference to the senses, how can there be a
contract in its absence any more than if the thing is in popular
speech different in kind from its description? The qualities that
make sameness or difference of kind for the purposes of a
contract are not determined by Agassiz or Darwin, or by the
public at large, but by the will of the parties, which decides
that for their purposes the characteristics insisted on are such
and such. /1/1 Now, if this be true, what evidence can there be
that a certain requirement is essential, that without it the
subject-matter will be different in kind from the description,
better than that one party has required and the other given a
warranty of its presence? Yet the contract description of the
specific vessel as now in the port of Amsterdam, although held to
be an implied warranty, does not seem to have been regarded as
making the contract repugnant and void, but only as giving the
defendant the option of avoiding it.
Pages:
388
389
390
391
392
393
394
395
396
397
398
399
400
401
402
403
404
405
406
407
408
409
410
411
412