Chapter II. On Consent

THE consent of the parties is the efficient and formal cause of a contract. When the two wills meet together and agree on the matter of the contract, the contract is formed. In order to produce its effect this consent must have certain qualities; it must be deliberate and free, mutual, internal as well as external.

It must be deliberate, for a contract imposes a perfect and serious obligation on the parties, an obligation which they voluntarily take upon themselves, and which is not imposed from without. Now such an obligation cannot arise from a semi-deliberate act; full and perfect deliberation is required to give rise to a full and perfect obligation which is voluntarily undertaken.

It must be free, not unjustly forced; for an obligation which binds in justice cannot arise from injustice.

It must be mutual, for a contract is the agreement of two wills. It is not necessary that consent be given at the same time by both parties. Provided that one of them has consented previously and his consent still endures, the contract will be formed when the other party gives his consent, for then there will be the agreement of the two wills.

It must be internal, for a contract is an agreement of wills; one renounces a right in favour of the other who accepts it, and this requires an internal act of the will. If the internal act be wanting, we may have a seeming contract, a contract in appearance, a fictitious but not a real contract. Inasmuch as a fictitious contract is no contract at all, it cannot as a contract bind the conscience, and so one who enters into a contract without intending to bind himself is not bound by it. He is, however, guilty of deception and fraud, and on this ground he is bound to indemnify the other party for any damage that he has caused him by his sinful and unjust action; and if the only means of doing this is for him to fulfil the terms of the contract, he will be bound in justice to do that. When a contract is entered into without the intention of fulfilling its obligations, there is no contradiction here as in the former case; the contract exists, and its obligations must be faithfully executed.

‘Internal consent is not sufficient of itself to form a contract; it must also be outwardly manifested to the other party in order that he may know that his offer has been accepted and that there is mutual agreement. In other words, the consent must be external as well as internal. This internal and external agreement of the parties to a contract is brought about by an offer being made by one of them and accepted by the other. As soon as acceptance is externally manifested, all the requisites for a contract are present, and it forthwith springs into existence, even though the offeror does not yet know of the acceptance of the offeree. English law accepts this doctrine so far as to decide that “‘ if acceptance through the post is expressly or by implication prescribed or permitted by the offeror, acceptance is made, and the contract is concluded, at the moment when an acceptance is duly posted for transmission to the offeror, even though the acceptance is delayed or lost in the post.”¹ Ordinarily, however, acceptance is not complete until it is communicated to the offeror.²

¹ Digest of English Civil Law, n. 198.

² ibid., n. 196.

Mistake concerning what was principally intended in the contract is said to be substantial, and it renders the contract null and void, for there is then no agreement of wills in the same matter. Thus, if one of the parties thinks that the contract is one of hiring, while the other thinks it is a sale, the mistake is substantial, and there is no contract. Similarly, mistake about the matter of the contract is substantial, and Vitiates it, as if one thinks he is buying gold, while the other knows that it is brass. Mere ignorance as to what the object was would not make the contract invalid. Again, if one of the parties makes his consent conditional on some definite point, there will be no consent and no contract if the condition is not verified. Mistake concerning the other party to the contract is as a rule not substantial, and does not vitiate the contract. In marriage, however, and in gratuitous contracts in favour of a certain person for purely personal reasons, mistake about the person of the other party is substantial. Even in onerous contracts mistake about the person with whom the contract is made may be substantial in special circumstances, when for particular reasons the consent is given only to a definite person.

Mistake about what is accessory and accidental in a contract does not invalidate it, for there is agreement about what is substantial and essential. Even if the party would not have entered into the contract if he had not been under a mistake about some matter which is accidental to it and not substantial, still the contract is valid, for, in fact, he gave his consent; unless, of course, he only gave consent conditionally, on some supposition which was not verified.

If, however, one of the parties was induced to give his consent by the fraud or misrepresentation of the other, and he would not otherwise have entered into the contract, the contract is voidable at the option of him who was deceived. The law of nature seems to indicate this as a suitable means of repairing the injury done by the fraud, and it is confirmed by English civil law.

Even if there be no fraud or misrepresentation but only non-disclosure of facts which it was of importance for the other party to know, this will suffice to enable the party who had a right to full knowledge to avoid contracts of marine, fire, and life insurance, for the sale of land, for family settlements, and for the allotment of shares in companies. are in English law said to be uberrimae fidei. Such contracts

A contract is also voidable at the option of one of the parties who has entered into it under duress—i.e., actual or threatened violence affecting the contracting party, or his wife, parent, or child, and inflicted by the other party to the contract, or by someone acting with his knowledge and for his advantage. Fear caused in other ways does not invalidate the contract or make it voidable, unless it was so great as to deprive the contracting party of the use of reason. When one of the parties stands to the other in the relation of parent, guardian, trustee, medical attendant, legal adviser, spiritual director, or the like, any contract between them by which the one in authority obtains benefit or advantage may, according to English law, be set aside by the other on the ground of undue influence, unless it can be shown that the transaction was fair. The burden of proving this rests on the superior, who will seldom be successful unless he can show that the other had access at least to independent advice,