Sec 178

In our own law, the same rule is now generally recognized.1 Undoubtedly there are many cases of apparent conflict as to details. But on the general question, there is almost an unbroken line of authority, to the effect that there is no contract wheu the parties have in mind essentially different things.2 A party may be estopped from denying what he said ; but unless this be the case, and this is only so when it is equitable he shouldbe so estopped, he is not contractually bound to something essentially different from what he had in mind.

Sec 179

Cases of error are to be distinguished from cases of impossibility of performance, to be hereafter discussed.3 It is true that where the impossibility arises from a fact in existence at the time timmte Absicht,-and when such an intention exists, a contract is perfected if the parties unite in this indefinite intention.-But it is answered by Hart-mann, that there is no such thing in reality as an indefinite intention. The doctrine that there can be no effect except in accordance with intention, he argues, is without recognition in practical jurisprudence. After discussing the applicability of the citations made in support of the doctrine from the earlier jurists, he goes on to ask whether, when a particular word is spoken in business, that word is not taken in its ordinary sense, and whether this sense does not necessarily bind all persons relying on its truthfulness and good faith. A party, for instance, who in a guarantee (Burgschaftschein) uses the term "Mark" instead of " Thaler," is bound to the party dealing with him in good faith for the Thaler.-By F. Mommsen, an adherent of the prevalent doctrine, it is conceded that in many cases of bona fide sales and bailments, words are to be taken in the sense in which the promisee accepted them. And it is also conceded by Windscheid, that a party who negligently misuses a word cannot set up a meaning personal to himself against the meaning which the word generally holds.-The conclusion reached by Hartmann is, that nullity on the ground of essential error is to be practically limited to cases of ambiguous utterance in which the rule "clarius loqui debuisset" bears equally on both parties, and where neither party can equitably claim to force his own interpretation on the other. This does not differ very widely from the rule stated in the text, that where there is no negligence a party cannot be bound to an engagement essentially different from what he intended, but that he may be estopped as to bona fide parties by an ambiguous utterance.

In our own law the same view obtains.

Error to be distinguished from impossibility of performance.

Further citations on this topic will be found infra, sec 1044 et seg.

1 See Pollock on Cont. Wald's ed. 400 ; Kerr on Fraud and Mistake, 436 ; Benj. on Sales, 3d Am. ed. sec 50; 2 Kent, Com. 470 ; Smidt v. Tidon, L. R. 9 Q. B. 446, and cases cited infra, sec 180, 186.

2 Supra, sec 4; infra, sec 180 et seq.

3 Infra, sec 296 et seq.