It is true that, when people make contracts, they usually contemplate the performance rather than the breach.The express language used does not generally go further than to define what will happen if the contract is fulfilled.A statutory requirement of a memorandum in writing would be satisfied by a written statement of the promise as made, because to require more would be to run counter to the ordinary habits of mankind, as well as because the statement that the effect of a contract is the assumption of the risk of a future event does not mean that there is a second subsidiary promise to assume that risk, but that the assumption follows as a consequence directly enforced by the law, without the promisor's co-operation.So parol evidence would be admissible, no doubt, to enlarge or diminish the extent of the liability assumed for nonperformance, where it would be inadmissible to affect the scope of the promise.
But these concessions do not affect the view here taken.As the relation of contractor and contractee is voluntary, the consequences attaching to the relation must be voluntary.What the event contemplated by the promise is, or in other words what will amount to a breach of contract, is a matter of interpretation and construction.What consequences of the breach are assumed is more remotely, in like manner, a matter of construction, having regard to the circumstances under which the contract is made.Knowledge of what is dependent upon performance is one of those circumstances.It is not necessarily conclusive, but it may have the effect of enlarging the risk assumed.
The very office of construction is to work out, from what is expressly said and done, what would have been said with regard to events not definitely before the minds of the parties, if those events had been considered.The price paid in mercantile contracts generally excludes the construction that exceptional risks were intended to be assumed.The foregoing analysis is believed to show that the result which has been reached by the courts on grounds of practical good sense, falls in with the true theory of contract under the common law.
The discussion of the nature of a promise has led me to analyze contract and the consequences of contract somewhat in advance of their place.I must say a word more concerning the facts which constitute a promise.It is laid down, with theoretical truth, that, besides the assurance or offer on the one side, there must be an acceptance on the other.But I find it hard to think of a case where a simple contract fails to be made, which could not be accounted for on other grounds, generally by the want of relation between assurance or offer and consideration as reciprocal inducements each of the other.Acceptance of an offer usually follows by mere implication from the furnishing of the consideration; and inasmuch as by our law an accepted offer, or promise, until the consideration is furnished, stands on no different footing from an offer not yet accepted, each being subject to revocation until that time, and each continuing
until then unless it has expired or has been revoked, the question of acceptance is rarely of practical importance.
Assuming that the general nature of consideration and promise is understood, some questions peculiar to bilateral contracts remain to be considered.These concern the sufficiency of the consideration and the moment when the contract is made.
