The further statement of Savigny which has been popularized for English and American lawyers by Sir Frederick Pollock and others, that not only mental assent to a promise in fact, but an intent to form a legal relation is a requisite for the formation of contracts, is part of the same system criticised in the preceding section, and cannot be accepted.11 Such a repetition of a rule of the civil law shows the danger of assuming that a sound principle in that law may be successfully transplanted. Nowhere is there greater danger in attempting such a transfer than in the law governing the formation of contracts. In a system of law which makes no requirement of consideration, it may well be desirable to limit enforceable promises to those where a legal bond was contemplated, but in a system of law which does not enforce promises - unless some benefit to the promisor or detriment to the promisee has been asked and given, there is no propriety in such a limitation. The only proof of its existence will be the production of cases holding that though consideration was asked and given for a promise, it is, nevertheless, not enforceable because a legal relation was not contemplated. On the contrary, the assertion is ventured that the common law does not require any positive intention to create a legal obligation as an element of contract.12 The views of parties to an agreement as to what are the requirements of a contract, as to what mutual assent means, or consideration, or what contracts are enforceable without a writing, and what are not, are wholly immaterial. They are as immaterial as the views of an individual as to what constitutes a tort. In regard to both torts and contracts, the law, not the parties, fixes the requirements of a legal obligation.13 It would indeed be possible for a system of contractual law to adopt as a principle that wherever the parties intended legal obligation, then and then only the law would create one, and such an idea seems to have developed and to have had considerable acceptance on the Continent of Europe; 14 but it is foreign to the common law and, it may be added, is intrinsically objectionable. Parties to an informal transaction frequently are not thinking of legal obligations. They intend an exchange, a gift, or to induce action by the other parties when they make promises, and to make the obligation of such promises depend upon the accident of the promisor's reflection on his legal situation is unfortunate. It may be guessed that where it is stated that an intent to create a legal relation is the test of a contract, the intent is frequently fictitiously assumed; and that a deliberate promise seriously made is enforced irrespective of the promisor's views regarding bis legal liability. It is indeed true that if the parties to an agreement undertake that no legal obligation shall be created, their undertaking in this regard will be respected by the law as would any other term of their agreement.15 Consequently if both parties indicate that their words are merely in joke, no contract will be formed.16 So where words appropriate to an offer are used evidently merely as a boast or explosion of wrath so that no reasonable person would be justified in taking them literally, no contract will result from an acceptance.17 But if a reasonable person would understand the words used as importing that the speaker promised to do something if given a requested exchange therefor, it is immaterial what intention the offeror may have had.18 There seems no reason why merely social engagements
11 Pollock on Contracts (8 th ed.), page 3, states that "it must be the intention of the parties that the matter in hand shall, if necessary, be so dealt with [i.e, by a Court of Justice], or at least they must not have a contrary intention." The last clause of this statement may be admitted. See also Koenigsberg v. Blau, 127 N. Y. Supp. 602.
12 In considering the liability of a member of a voluntary association on contracts made on behalf of the association, the Connecticut court said: "It is of no legal significance that the defendants did not intend to be individually responsible, or that they did not know or believe that as a matter of law they would be." Davidson v. Holden, 55 Conn. 103,112,10 Atl. 516. Consider also contracts imposed upon promoters. See infra, Sec. 306.
13 In HotchkiBa v. Nat. City Bank, 200 Fed. 287, 203 (aff'd 231 U. S. SO, 58 L. Ed. 115,34 Sup. Ct. 20), L. Hand, J., said:"A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the parties. A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent."
14 See Loretuen, 28 Yale L. J. 621.
15Central Bitulithic Paving Co. v. Highland Park, 164 Mich. 223, 129 N. W. 46. "A promise made with an understood intention that it is not to be legally binding, but only expressive of a present intention, is not a contract. Thruston o. Thornton, 1 Cush. 89;" Wellington p. Apthorp, 145 Mass. 69, 74.13N.E.10.
16Keller v. Holderman, 11 Mich. 248, 83 Am. Dec. 737; McClurg v. Terry, 21 N. J. Eq. 225; Theiss v. Weiss, 166 Ps. 9, 31 Atl 63, 45 Am. 8t Hep. 638; Bruce v. Bishop, 43 Vt. 161; Nyulaey v. Rowan, 17 Vict. L. R. 663. The intent of one party to make a jest will not deprive his words of their natural meaning however, and if the other understands, and has reason to do so, that the words are seriously intended, a contract will result. Plate v. Durst, 42 W. Va. 68, 24 S. E. 580, 32 L. R. A. 404. The earliest statements in English law to the effect that promises made in jest are not obligatory relate to promises of marriage, which were governed by the civil law conception of obligations as developed in the canon law. See The Lady's Law (2d ed., 1737), p. 29; Swinburne on Spoussls (2d ed., 1711), p. 210. It is more in the spirit of the early common law to hold parties to the consequences of their acts even though each knew the other intended a jest.
17 Higgins v. Lessig, 49 111. App. 459. The defendant after the theft of harness, worth $15, said with rough language and epithets concerning the thief; "I will give 1100 to any man who will find out who the thief is, and I will give a lawyer $100 for prosecuting him." The court held that these words should be regarded as "the extravagant exclamations of an excited man" and that the plaintiff had no right to consider them an offer.
18 In Boggard v. Dickenson, 180 Mo. App. 70, 165 S. W. 1135, 1137, the court said-"The defendant had the benefit of an instruction to the effect that if the offer of reward for the capture or arrest of the slayer of Stanley Ketchel was made by defendant [the offeror] while laboring under strong excitement and without any intention should not create contracts if the requisites for the formation of a contract, already enumerated exists.19 Even where one party makes it clear to -the other that he is unwilling to enter into a contract, the law may nevertheless impose one upon him where his conduct would be tortious except upon the assumption that he assented to an offer.20 of making a contract, but merely as a boast, then the verdict should be for defendant. This went to the limit in defendant's favor and perhaps stated the law too broadly, as we doubt about the unexpressed intention of a person offering a reward not to be bound by it being a defence against one who honestly acted upon it."
19 Pollock suggests the case of an invitation to dinner which has been accepted [8th ed. p. 4, n. (c), ] and suggests that there is no contract. This would ordinarily be true but the reason is because the promise of the guest to attend the dinner is not given or asked for as the price of the host's promise. Though in the popular meaning of the word the acceptance is at the request of the host, in the legal meaning of the word request, it is not. See infra, Sec. 112. In Bolton v. Madden, L. R. 9 Q. B. 55, the plaintiff and defendant were both subscribers to a charity, the objects of which were elected by the subscribers, who had votes proportioned in number to the amount of their subcrip-tiona. The plaintiff and defendant agreed that if the plaintiff would give 28 votes for an object of the charity the defendant favored, the defendant would, at the next election, give 28 votes for such charity as the plaintiff should then favor. This was held a binding contract. The agreement cannot, it is true, be called strictly a social engagement, but the decision seems to indicate the possibility of undertakings being enforced which are not business contracts.
20See infra, Sec.Sec. 1796, 1856. Such cases as this where there is no real expression of mutual assent perhaps may be classed as quasi-contracts, but obligations of the sort referred to are unlike most quasi-contracts since they are not necessarily merely to pay money. Moreover, the extent of the liability is measured by the terms of an offer, not by the benefit received by the defendant.