1 Gesammelte Aufsatze, von Rudolph von Ihering, Bd. 1, Jena, 1881.

On the same principle, according to Bahr, are to be explained the numerous German rulings by which a party is made liable to bona fide promisees on the letter of a contract, though through a slip of the pen, or the mistake of an agent, words varying the intended meaning are introduced. "He who uses the telegraph," so Bahr argues, "must be aware that mistakes are incidental to this mode of communication, and he cannot therefore relieve himself from liability for the effect produced on others by such an instrumentality, if he puts it in motion."

Bahr concludes his criticism by saying that to the doctrine of culpa in con-trahendo a serious objection exists in the fact that there is no standard of damages by which the injury sustained by such "culpa" can be redressed. The true standard of damages, he maintains, is that which rests on the hypothesis that the contract is still in force, and which makes the party, therefore, liable on the contract and not on the tort. This does not materially differ The negligent party would go free: the other party would have to suffer the consequences of the mistake. It is clear, he concedes, that a party who non-contractually and non-maliciously makes erroneous statements, is not liable for the injury sustained by others in consequence of their belief in such statements. I may negligently, for instance, print an erroneous report of the stock-market, or I may negligently publish erroneous political intelligence, but a party who has been injured by my error cannot, for this reason, recover from me damages. It is otherwise, however, if I make an offer to a specific person, or to a certain class of persons, conditioned on something to be done by the party addressed; and this something is done, but after it is done, the proposal turns out to be one on which I am not contractually bound. If by my negligence I have induced another party to perform certain services or incur certain expenses in reliance on my proposal, then, he argues, I am liable to such person for culpa in contrahendo. And, according to the Roman law, so he maintains: (1) When a contract is held void in consequence from the practical results of our own cases. There can he no douht, that should the question arise we would hold a party liable for culpa in contrahendo. At the same time the cases in which such a decision could be invoked would be very rare. Wherever the promisee is induced bona fide to act on the letter of the promise, the promisor is estopped from disputing such letter. Wherever the promisee knows that the promisor was acting under a mistake, this is ground for reformation or rescission, which, however, would not be granted unless the promisor does equity by recompensing the promissee, if injured without fault of his own, for such injury.

Dr. G. Hartmann, in an article on Wort und Wille im Rechtsverkehr, in Ihering's Jahrbucher for 1881, vol. xx. p. 2, has an article on the same topic. A prescription is put up, such is the illustration with which he opens, by an apothecary, who blunders as to the words, so as to give a medicine totally different from that ordered. Of course, according to the prevalent doctrine, there is no contract between the apothecary and the purchaser of the medicine, since they have utterly different things in view: the purchaser ordering soda, for instance, and the apothecary selling arsenic. But the fact of there being no contract would not preclude an action for negligence. On the other hand, that this negligence is culpa in contrahendo is shown by the fact that a suit for it can only be maintained by a party bearing some sort of contractual relation with the apothecary. Liability for culpa in contrahendo is asserted by Pothier, Traite des Obliga-tions, i. ch. 1, No. 10. He bases it on "l'equite, qui m'oblige a indemniser celui, quo j'ai par mon imprudence in-duit en erreur " of error as to the thing bargained for, the negligent party is liable for damages; and (2) a similar liability attaches in cases where the contract is held to be void in consequence of incapacity of the vendor to convey.