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. If A promises a barrel of flour to B,
and B promises him ten dollars for it, A means to have the ten
dollars for his flour, and B means to have the flour for his ten
dollars. If no time is set for either act, neither can call on
the other to perform without being ready at the same time
himself.
But this principle of equivalency is not the only principle to be
drawn even from the form of contracts, without considering their
subject-matter, and of course it is not offered as such in Mr.
Langdell's work.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account