Sec 171

The subject of error (or mistake, as it is sometimes called) is beset with peculiar difficulties. A line has to be taken in such a way as to avoid two extremes, either of which would be fatal to business. If every error in the mind of either party as to a proposed contract prevents its completion, then there could be no contract completed. No valid marriage could be solemnized, since there is no marriage in which at least one party is not in some slight error as to the other's qualifications ; no valid sale of goods could be effected, since there is no sale in which either vendor or purchaser has a perfect idea of the thing sold ; no contract of agency could be instituted, since neither principal nor agent can be absolutely free from error as to each other's capacity. On the other hand, consequences equally disastrous would follow from the position that no error, no matter how essential, prevents a contract from being perfected, and from embracing within its operation any property to which it might apparently relate. A bargain which A. supposes he is making with B. would give C. a title to A.'s property, if C. should at the time of the bargain succeed in palming himself off to A. as B. A. might hand a diamond to B., by mistake for a glass bead, and B. would take a title which would be unassailable. A. and B., by a transposition of documents, might sign an agreement in which a thousand shares of bank stock are to be sold by A. to B., instead of a barrel of flour, as was intended, and, if no error prevents a contract from being entered into, title to the bank stock would thereby vest in B. On the one hand, therefore, if we adopt the rule that every error prevents a contract from attaching, no title whatever could be made ; on the other hand, if we adopt the rule that no error prevents a contract from attaching, then no ownership would be secure. We must therefore conclude that, while the mere fact of error in the mind of one of the parties does not prevent a contract from being perfected, there are some errors that have this effect. To determine what these errors are will be the object of the present chapter. In a succeeding chapter will be considered the interesting question how far a party, who, by mistake, leads another to make a void bargain, is liable for the loss to which the other party is thereby subjected.1

Sec 172

The question of error is much embarrassed by the ambiguity of the terms used. In cases where there is evidently no contract, there having been no consent of minds (as where A. proposes to B., supposing B. to be C, that B. should take command of a ship, B. being a tailor who had never been at sea; or where A., as in a case already put, proposes to sell a diamond to B., supposing it to be a glass bead), no acceptance on the part of one party to the other's proposal can make a contract; yet we are sometimes told that such " contracts" are " voidable" and sometimes that they are "void." "Void" and " voidable" are thus used as convertible terms, though there is this important difference between them, that a " void" contract is no contract at all, whereas a " voidable" contract conveys a title which the party conveying may afterwards ratify, the ratification relating back to the date of the original transaction,- a title which, even before ratification, may be absolute in the hands of a bona fide purchaser from the person holding the "voidable" contract.2 We hear also of "null contracts," though it is hard to see how there can be a contract which is not a contract. In these pages an effort is made to speak of negotiations which do not ripen into contracts, because the parties do not consent to the same thing, simply as "negotiations" or "bargains;" saying, as in the prior section, that in such cases want of consent prevented a contract from being "entered into" or "perfected." Yet, cautious as we may be, it is difficult always to avoid applying the terms " void" or " incomplete contracts" to such negotiations. They are so called in numerous rulings of our courts, and in many of our textbooks ; and, logically incorrect as is the expression "void contract," it is an expression which has now a definite meaning, being understood to be a negotiation which, though on its face a contract, has no binding force, is incapable of ratification unless with a new consideration, and is incapable of passing title even to bona fide purchasers.

Embarrassed by ambiguity of terms.

1 Infia, sec 1043 et sea.

2 Supra, sec 28.