1 See infra, sec 188 et seq.

2 Whether by blundering he does not render himself liable in other respects, will be hereafter discussed. Infra, sec 1043 et seq.

3 It is argued by Windscheid that a variance only avoids where the intention falls behind the expression, not where it exceeds it. Thus a party, according to the Roman standards, who makes a bargain for a pledge on a bronze vessel, which turns out to be gold, he supposing it to be gold, is bound by his bargain. (L. 1, sec 2, D. de pign. act. 13, 7.) As unessential points, according to Windscheid, are to be considered the peculiarities (Eigen-schaften) of the person whom the declarant has in mind ; the name of this person ; the name or unessential peculiarities of the object of the declaration ; the accessories of such object.-With respect to contracts, as Windscheid (sec 77) proceeds to notice, there is an additional element of error, viz., when one party mistakes what the other party has said. Here, if the mistake is essential, there is no consent. But here, also, it is not the error that avoids, but the want of consent. Hence, when the difference goes to a non-essential point, there is no avoidance.

4 See review in Zitelmann's Irrthum und Rechtsgechaft, eine psycholo-gische-juristische Untersuchung, Leip-sig, 1879.

1 This illustration is given by Bekker in Kritische Vierteljahrschrift fur Ge-aetzgebung, 1879, 48.

2 Ibid.

1 Oppenheim v. Weiller.

2 Infra, sec 1043.

1 See infra, sec 1043. 2 Divergenz Zwischen Wille und Erklarung, 1879, cited supra, sec 174. 3 Zur Lehre vom. sog. error in substantia - Romisch - rechtliche Unter-suchung-Graz, Leuschner und Lu-benzky.

1 Kritische Vierteljahrschrift, etc., vol. iv. (N. S.) 1881, p. 202.

2 Infra, sec 1043 et seq.

1 Ibid. According to Windscheid, the error which prevents the inception of a contract is of two kinds : first, that which exists when the thing done is not intended to he done : secondly, that which exists when the thing done was intended, but the effect is different from that which was intended. Under the first head falls the use of unintended words, or the doing of unintended acts ; under the second head falls the doing or saying of things which have an effect entirely different from that which was supposed, as is the case where a wrong document is signed by mistake, or where one person is erroneously addressed supposing him to be another person. Brinz and Holden, both high authorities, deny that the second of these cases falls under the head of error, insisting that the only error that avoids a contract is that which consists in a variance between the intention and the expression of intention ; when the " Erklarungshandel nicht gewollt sei." On the other hand, Windscheid, in subsequent editions, reiterates his old position, though without any additional argument. By Dr. Zitelmann, in a treatise containing 600 pages of ingenious psychological as well as judicial exposition (Leipsig, 1879), the doctrine that error avoids is applied to all cases in which the error goes to the individuation of the object of the contract.

Dr. Emil Pfersche, in a treatise already noticed, dissents, as we have seen, from the doctrine as to nullity from substantial error. He holds that in all cases of sales the vendor is bound for all the properties of the thing sold which he knew, or ought to have known, that the purchaser supposed the thing to possess. This liability, however, only extends to cover the damage which the purchaser might sustain; though in cases of material mistake, the court may direct the rescinding of the contract as an alternative for abatement of the price. He further argues, that a bargain as to a designated object will not be invalidated by the fact that one of the acting parties is in error as to the properties of the object.

The prevalent doctrine is contested by G. Hartman, in Ihering's Jahrb., 1881 (vol. xx. 1). He argues that there is no other way to make this doctrine operate logically than by so extending the area of intention as to cover all future contingencies. A party, for instance, contemplates a particular contingent result, and if the prevalent doctrine be sound, a promise based on such contingency does not operate if the two parties have not prescience of the thing contingently to happen. It is true, that according to the advocates of the prevalent view, there may be such a thing as an indefinite intention,-ein unbesof the bargain (e. g. the destruction of the thing bargained for, of which the parties were ignorant), the cases have something in common.1 But in cases of impossibility, the nullity of the transaction is in no wise dependent on the error of the parties; a party may be secretly apprised of the impossibility of performance, yet this does not make impossibility of performance any the less a defence for him, though he may have made himself liable in an action for deceit.2 The question in such case is not one of consent to a contract; it lies in a different domain, that of performance of a contract.3