The Common Law [127]
has no bearing on the bargain. /1/
If, on the other hand, a contract contained a representation which was fraudulent, and which misled the party to whom it was made, the contract would be voidable on the same principles as if the representation had been made beforehand. But words of description in a contract are very frequently held to amount to what is sometimes called a warranty, irrespective of fraud. Whether they do so or not is a question to be determined by the court on grounds of common sense, looking to the meaning of the words, the importance in the transaction of the facts [329] which the words convey, and so forth. But when words of description are determined to be a warranty, the meaning of the decision is not merely that the party using them binds himself to answer for their truth, but that their truth is a condition of the contract.
For instance, in a leading case /1/ the agreement was that the plaintiff's ship, then in the port of Amsterdam, should, with all possible despatch, proceed direct to Newport, England, and there load a cargo of coals for Hong Kong. At the date of the charter-party the vessel was not in Amsterdam, but she arrived there four days later. The plaintiff had notice that the defendant considered time important. It was held that the presence of the vessel in the port of Amsterdam at the date of the contract was a condition, the breach of which entitled the defendant to refuse to load, and to rescind the contract. If the view were adopted that a condition must be a future event, and that a promise purporting to be conditional on a past or present event is either absolute or no promise at all, it would follow that in this case the defendant had never made a promise. /2/ He had only promised if circumstances existed which did not exist. I have already stated my objections to this way of looking at such cases, /2/ and will only add that the courts, so far as I am aware, do not sanction it, and certainly did not in this instance.
There is another ground for holding the charter-party void and no contract, instead of regarding it as only voidable, which is equally against authority, which nevertheless I have never been able to answer wholly to my satisfaction. In the case put, the representation of the lessor of the vessel [330] concerned the vessel itself, and therefore entered into the description of the thing the lessee agreed to take. I do not quite see why there is not as fatal a repugnancy between the different terms of this contract as was found in that for the sale of the barrels of salt described as containing mackerel. Why is the repugnancy between the two terms,--first, that the thing sold is the contents of these barrels, and, second, that it is mackerel--fatal to the existence of a contract? It is because each of those terms goes to the very root and essence of the contract, /1/--because to compel the buyer to take something answering to one, but not to the other requirement, would be holding him to do a substantially different thing from what he promised, and because a promise to take one and the same thing answering to both requirements is therefore contradictory in a substantial matter. It has been seen that the law does not go on any merely logical ground, and does not hold that every slight repugnancy will make a contract even voidable. 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
If, on the other hand, a contract contained a representation which was fraudulent, and which misled the party to whom it was made, the contract would be voidable on the same principles as if the representation had been made beforehand. But words of description in a contract are very frequently held to amount to what is sometimes called a warranty, irrespective of fraud. Whether they do so or not is a question to be determined by the court on grounds of common sense, looking to the meaning of the words, the importance in the transaction of the facts [329] which the words convey, and so forth. But when words of description are determined to be a warranty, the meaning of the decision is not merely that the party using them binds himself to answer for their truth, but that their truth is a condition of the contract.
For instance, in a leading case /1/ the agreement was that the plaintiff's ship, then in the port of Amsterdam, should, with all possible despatch, proceed direct to Newport, England, and there load a cargo of coals for Hong Kong. At the date of the charter-party the vessel was not in Amsterdam, but she arrived there four days later. The plaintiff had notice that the defendant considered time important. It was held that the presence of the vessel in the port of Amsterdam at the date of the contract was a condition, the breach of which entitled the defendant to refuse to load, and to rescind the contract. If the view were adopted that a condition must be a future event, and that a promise purporting to be conditional on a past or present event is either absolute or no promise at all, it would follow that in this case the defendant had never made a promise. /2/ He had only promised if circumstances existed which did not exist. I have already stated my objections to this way of looking at such cases, /2/ and will only add that the courts, so far as I am aware, do not sanction it, and certainly did not in this instance.
There is another ground for holding the charter-party void and no contract, instead of regarding it as only voidable, which is equally against authority, which nevertheless I have never been able to answer wholly to my satisfaction. In the case put, the representation of the lessor of the vessel [330] concerned the vessel itself, and therefore entered into the description of the thing the lessee agreed to take. I do not quite see why there is not as fatal a repugnancy between the different terms of this contract as was found in that for the sale of the barrels of salt described as containing mackerel. Why is the repugnancy between the two terms,--first, that the thing sold is the contents of these barrels, and, second, that it is mackerel--fatal to the existence of a contract? It is because each of those terms goes to the very root and essence of the contract, /1/--because to compel the buyer to take something answering to one, but not to the other requirement, would be holding him to do a substantially different thing from what he promised, and because a promise to take one and the same thing answering to both requirements is therefore contradictory in a substantial matter. It has been seen that the law does not go on any merely logical ground, and does not hold that every slight repugnancy will make a contract even voidable. 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