Sec 173

Another difficulty is the confusion of classification that prevails. As has been pointed out by Savigny, and illustrated with much point by Windscheid, there are three distinct relations in which the question of consent may be considered. These, with their sub-relations, may be thus expressed :b. Unconscious, in which case, when essential, no contract is entered into.1

A. Error not induced by misrepresentation or fraud : a. Conscious, e. g., where the transaction is in jest.

B. Error induced by honest misrepresentations.-In this case when the error is essential, then, as under the first head, no contract is entered into. When the error is non-essential, but goes to quantity or quality, then the contract binds, but an action lies on the warranty, express or implied ; or an abatement is made in the price, when sued on; or specific performance will be refused, unless the complainant will make the misrepresentations good ; or, in proper cases, there may be a rescission, saving the rights of the other side.2

C. Error induced by fraud.-In this case, if the error is essential, then, as under prior heads, there is no contract.-If the error is non-essential, then, in addition to the rights specified under head B, the injured party may have an action of deceit against the party imposing on him.3

Much of the confusion observable in our decisions has arisen from the fact that the incidents belonging to one class of error are imputed to another class. To avoid this confusion, Savigny's classification, with some modifications, will be adopted in the following pages, and the cases distinguished on this basis.

Also by confusion of classification.

1 See infra, sec 175.

2 Infra, sec 186 et seq.; 282 et seq.

3 Infra, sec 232 et seq.

237 .

Sec 174

To a binding juridical act, we must remember, it is essential that not only should there be a will to do the act, but the will must be duly expressed. A mere will to do a thing has no force without the expression. The will, unexpressed, is secret and invisible, and no matter how strong we may imagine it to be in a particular person, or how powerful may be the motives we may conceive of as influencing it, it has no contractual force unless expressed. On the other hand, an expression of will may be robbed of force should it appear that it was unintended. The promises of a person talking wildly in his sleep do not bind him, nor is he bound by promises made by him under radical delusions as to the object of the promise. That this was so may be shown by his subsequent deeds and words. But so essential to society is it that faith should be given to words and deeds as the expression of thought, that the burden of proof is on a party who seeks to show that he acted, when thus apparently expressing his will, under error, or unconsciously.1-In our own law, as will hereafter be seen, while a document is to be construed according to intention,2 this intention is to be gathered from the words used by the parties; and only when there is ambiguity, or when these words were meant to be supplemented by unwritten negotiations based on extrinsic facts, can either extrinsic facts or unwritten negotiations be put in evidence to explain the written text.3-In the modern Roman law, the prevailing tendency has been to subordinate the letter to the supposed intent more completely than is the case with ourselves. Recently, however, in view of the looseness of construction to which this led, there has been a reaction towards the position that when words have been selected by the parties to express their views, these words alone are to decide. This is urged by an intelligent expositor:4 (1) on the ground of practical necessity; (2) on that of logic; and (3)

Will and its expression must coincide.

1 Savigny, Rom. Recht, sec 134.

2 Infra, sec 657.

3 See infra, sec 629 et seq.

4 L. Scheiff, Divergenz zwischen Wille und Erklarung, Bonn, 1879.

on that of positive law. As to the first, the chief example of those who hold that the letter alone is to control, is the case of a person who signs a paper without knowing what it contains, in which case, it is urged by Bahr, it is the letter alone that can determine, as there is no intention whatever. To this, Scheiff adds, that in such cases there is an intention, and that intention is to be bound by whatever shall be placed on the paper.1 The same remark may be made as to the signing of a cheque with the amount in blank. It may be said that here there is no intention, and that the letter must necessarily exclusively control. But the answer is that the intention is to be bound by whatever the party entrusted with the cheque shall within a certain range enter in it. (2) The logical objection to the assigning absolute supremacy to the intention is, that, as intention is undefinable and unlimited, it cannot determine legal relations. The law, therefore, can deal with intention only as expressed in words. (3) By the Roman standards intention without expression is as inoperative as is expression without intention.-In our own system, while the controversy has not been so radical, there is no question of construction in which it does not emerge. With us, however, the necessity of maintaining intact, for commercial purposes, the sanctity of written terms, is more strongly felt than it was in the old Roman system, in which business was conducted mainly by word of mouth, or than it is in Germany and France, where the traditions of the Roman law remain authoritative. The distinctive position taken by our courts is elsewhere disoussed in detail.3

1 See infra, sec 185.

2 4 Kr. Viert. fur Gesetz. N S. 160.

3 Infra, sec 655, 658 ; Wh. on Ev. sec 958. The question whether the will when acting under the influence of error can be regarded as free, is discussed with much subtlety by Savigny. (Rom. Recht, III. sec 115.) There is, he admits, some plausibility in the position that error is like unconsciousness in this, that a person in error is unconscious of what he is about. We hold an infant and a lunatic to be under certain conditions destitute of freedom of will, and several passages in the Roman standards assign the same quality to persons acting in error. "Nulla enim voluntas errantis est," so speaks one of the jurists (L. 20 de aqua (39,3) ) ; and to the same effect several other citations may be given. But Savigny argues, that the two states-that of ignorance, and that of unconsciousness-cannot be included in the same category. When we say, he argues, that the erroneous concep-.