The Common Law [128]
is also identified by reference to the senses, how can there be a contract in its absence any more than if the thing is in popular speech different in kind from its description? The qualities that make sameness or difference of kind for the purposes of a contract are not determined by Agassiz or Darwin, or by the public at large, but by the will of the parties, which decides that for their purposes the characteristics insisted on are such and such. /1/1 Now, if this be true, what evidence can there be that a certain requirement is essential, that without it the subject-matter will be different in kind from the description, better than that one party has required and the other given a warranty of its presence? Yet the contract description of the specific vessel as now in the port of Amsterdam, although held to be an implied warranty, does not seem to have been regarded as making the contract repugnant and void, but only as giving the defendant the option of avoiding it. /2/ Even an express warranty of quality in sales does not have this effect, and in England, indeed, it does not allow the purchaser to rescind in case of breach. On this last point the law of Massachusetts is different.
The explanation has been offered of the English doctrine with regard to sales, that, when the title has passed, the purchaser has already had some benefit from the contract, and therefore cannot wholly replace the seller in statu quo, as must be done when a contract is rescinded. /3/ This reasoning [332] seems doubtful, even to show that the contract is not voidable, but has no bearing on the argument that it is void. For if the contract
is void, the title does not pass.
It might be said that there is no repugnancy in the charterer's promise, because he only promises to load a certain ship, and that the words "now in the port of Amsterdam" are merely matter of history when the time for loading comes, and no part of the description of the vessel which he promised to load. But the moment those words are decided to be essential they become part of the description, and the promise is to load a certain vessel which is named the Martaban, and which was in the port of Amsterdam at the date of the contract. 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. Of course there is no such limit to the scope of their employment. A contract may warrant the existence of other facts as well, and examples of this kind probably might be found or imagined where it would be clear that the only effect of the warranty was to attach a condition to the contract, in favor of the other side, and where the question would be avoided whether there was not something more than a condition,--a repugnancy which prevented the formation of any contract at all. But the preceding illustrations are enough for the present purpose.
We may now pass from undertakings that certain facts are true at the
The explanation has been offered of the English doctrine with regard to sales, that, when the title has passed, the purchaser has already had some benefit from the contract, and therefore cannot wholly replace the seller in statu quo, as must be done when a contract is rescinded. /3/ This reasoning [332] seems doubtful, even to show that the contract is not voidable, but has no bearing on the argument that it is void. For if the contract
is void, the title does not pass.
It might be said that there is no repugnancy in the charterer's promise, because he only promises to load a certain ship, and that the words "now in the port of Amsterdam" are merely matter of history when the time for loading comes, and no part of the description of the vessel which he promised to load. But the moment those words are decided to be essential they become part of the description, and the promise is to load a certain vessel which is named the Martaban, and which was in the port of Amsterdam at the date of the contract. 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. Of course there is no such limit to the scope of their employment. A contract may warrant the existence of other facts as well, and examples of this kind probably might be found or imagined where it would be clear that the only effect of the warranty was to attach a condition to the contract, in favor of the other side, and where the question would be avoided whether there was not something more than a condition,--a repugnancy which prevented the formation of any contract at all. But the preceding illustrations are enough for the present purpose.
We may now pass from undertakings that certain facts are true at the