But now suppose that there is no element of uncertainty except in
the minds of the parties. Take, for instance, a wager on a past
horse-race. It has been thought that this would amount to an
absolute promise on one side, and no promise at all on the other.
/2/ But this does not seem to me sound. Contracts are dealings
between men, by which they make arrangements for the future. In
making such arrangements the important thing is, not what is
objectively true, but what the parties know. Any present fact
which is unknown to the parties is just as uncertain for the
purposes of making an arrangement at this moment, as any future
fact. It is therefore a detriment to undertake to be ready to pay
if the event turns out not [305] to have been as expected. This
seems to be the true explanation why forbearance to sue upon a
claim believed the plaintiff to be good is a sufficient
consideration, although the claim was bad in fact, and known by
the defendant to be bad. /1/ Were this view unsound, it is hard
to see how wagers on any future event, except a miracle, could be
sustained. For if the happening or not happening of the event is
subject to the law of causation, the only uncertainty about it is
in our foresight, not in its happening.
The question when a contract is made arises for the most part
with regard to bilateral contracts by letter, the doubt being
whether the contract is complete at the moment when the return
promise is put into the post, or at the moment when it is
received. If convenience preponderates in favor of either view,
that is a sufficient reason for its adoption. So far as merely
logical grounds go, the most ingenious argument in favor of the
later moment is Professor Langdell's. According to him the
conclusion follows from the fact that the consideration which
makes the offer binding is itself a promise. Every promise, he
says, is an offer before it is a promise, and the essence of an
offer is that it should be communicated. /2/ But this reasoning
seems unsound. When, as in the case supposed, the consideration
for the return promise has been put into the power of the offeree
and the return promise has been accepted in advance, there is not
an instant, either in time or logic, when the return promise is
an offer. It is a promise and a term of a binding contract as
soon as it is anything. An offer is a revocable and unaccepted
communication of willingness to promise. [306] When an offer of a
certain bilateral contract has been made, the same contract
cannot be offered by the other side. The so-called offer would
neither be revocable nor unaccepted. It would complete the
contract as soon as made.
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