Now, how do we settle whether such a condition exists? It is easy
to err by seeking too eagerly for simplicity, and by striving too
hard to reduce all cases to artificial presumptions, which are
less obvious than the decisions which they are supposed to
explain. The foundation of the whole matter is, after all, good
sense, as the courts have often said. The law means to carry out
the intention of the parties, and, so far as they have not
provided [335] for the event which has happened, it has to say
what they naturally would have intended if their minds had been
turned to the point. It will be found that decisions based on the
direct implications of the language used, and others based upon a
remoter inference of what the parties must have meant, or would
have said if they had spoken, shade into each other by
imperceptible degrees.
Mr. Langdell has called attention to a very important principle,
and one which, no doubt, throws light on many decisions. /1/ This
is, that, where you have a bilateral contract, while the
consideration of each promise is the counter promise, yet prima
facie the payment for performance of one is performance of the
other. The performance of the other party is what each means to
have in return for his own.
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