So interpreted, it is
repugnant.
Probably the true solution is to be found in practical
considerations. At any rate, the fact is that the law has
established three degrees in the effect of repugnancy. If one of
the repugnant terms is wholly insignificant, it is simply
disregarded, or at most will only found a claim for damages. The
law would be loath to hold a contract void for repugnancy in
present terms, when if the same terms were only promised a
failure of one of them would not warrant a refusal to perform on
the other side. If, on the other hand, both are of the extremest
importance, so that to enforce the rest of the promise or bargain
without one of them would not merely deprive one party of a
stipulated incident, but would force a substantially different
bargain on him, the promise will be void. There is an
intermediate class of cases where it is left to the disappointed
party to decide. But as the lines between the three are of this
vague kind, it is not surprising that they have been differently
drawn in different jurisdictions.
[333] The examples which have been given of undertakings for a
present state of facts have been confined to those touching the
present condition of the subject-matter of the contract.
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