Even where there is an actually established state of mind of some individual, juridical thinking may still have the function of separating the portion of this state of mind which is legally relevant from the part that is irrelevant. This separation goes beyond a mere ascertaining of facts, in view of the unity and mutual interdependence of the various factors making up such state of mind. This is apparent in the case of distinguishing immaterial motives from the "real" intention.160 For example, can a loan made for gambling purposes be recovered? That depends on whether we consider as "causa" of the making of the loan merely a willingness to extend credit, disregarding as an immaterial motive the further contents of the creditor's consciousness
160 According to Dernburg, the determining factor for this is the custom of business, or under any circumstances some social factor. Dernburg says in his "Pandekten," section 94: "Preliminary intentions bringing about the transaction and at the same time essential to it are called motives. . . . That will be considered as essential within the meaning of the party which is ordinarily so considered in the regular course of similar transactions." And similarly in section 102: "The modern doctrine considers a mistake regarding qualities of goods essential if according to the current notions of business men in similar cases the goods would have been classified as a different kind of goods if they did not have the qualities erroneously supposed to attach to them."
(to wit, his knowledge that the money lent will be employed in a game which, possibly, is unlawful); or whether we consider such knowledge as "an intention to make gambling possible" and as such treat it as an integral part of the intended transaction. It is easily seen that there is here a sort of vagueness, and that such artificial separation of the processes of consciousness which in reality form a single whole, is subject to value judgments at discretion.
Occasionally one may see, by simply looking at the result arrived at by the judge in his endeavor to find the mental facts, that he has carried into his finding quite as much or more of himself than he has really discovered from the outside.161 This shows that he has really done something quite different from merely establishing facts. Let us take an example. Somebody is charged with uttering blasphemy. The judge, trying to see whether section 122 of the Austrian Penal Code is applicable, must become clear in his own mind, whether the defendant had in mind a monotheistic, polytheistic, or pantheistic conception of the deity, whether his intention was one merely of vain cursing, or of bringing the idea of God into disrepute, or of injuring the religious sensibilities of others, and so forth. Possibly the blasphemer himself, if.he tried ever so hard, could not give a clear account of these things, yet the judge has to decide upon them.
161 This constitutes a large part of the uncertainty which has long been recognized. Averanius, "Interpretationum libri v," book i, chapter 33, says: "In exploranda voluntate id quod verisimile est sequimur." Another reason for uncertainty is found in this, that the idea of "wrong" or "guilt" is likely to enter into our attempts to find "internal" facts. One is almost always likely to identify "he knows" with "he ought to know." Now, why "ought he" to know? (Comp. infra, Sec. 27.) Moreover, this alone makes the finding of internal facts in many cases something more than mere finding of facts, that very frequently the statutes themselves contain suppositions - well or ill founded - regarding the probable existence of certain facts, such as silence regarding important information, certain kinds of declarations, and the like. As stated above, the matter is exceedingly complicated.
Some cases from civil practice will make the matter even clearer. A young girl in the lower walks of life becomes engaged to a clerk. In order to enable him to establish a home she turns over to him her savings, and together they establish themselves in some business. They have no success in this, and as a result the engagement is broken off. Now the girl sues her former fiance for a return of the money and the answer is that it was lost in the partnership business.
Now the judge will have to find whether the turning over of the money was intended as a loan; or whether it was meant to be the advancement of a marriage portion; or whether the business was to belong to the plaintiff with the defendant as partner; or whether the money was invested as a limited partnership fund, or whatever other possibilities may exist. The judge has to answer all these questions, although perhaps, nay in all probability, the intention of the parties at the time when the money was turned over was in no wise definitely fixed. What was in their minds was nothing more than that they loved each other, had perfect mutual confidence, were going to get married, and that it made no difference whatever in whose pocket the money was kept. In short, the thinking and willing of the two young people did not proceed according to the forms of the Roman law. The judge will not be able to arrange the facts into one of those forms, and consequently cannot begin to apply the legal rule by subsuming the facts, until he has succeeded in reshaping the real facts relating to the intention of the parties, by utilizing his own attitude towards social life (his business experience, moral judgments, and the like), in such a manner that he gets at last a state of facts fit to be placed into one of the accepted categories of business transactions.
It has often been observed that what the judge decides to be the established will of the parties frequently has had no existence in their minds. Some witty person remarked that whenever a lawyer says that something or other was the manifest intention of somebody, "manifest" means that the man has really never had such an intention. Jhering, in his "Scherz und Ernst in der Juris-prudenz," makes fun of a judgment he himself once rendered when he was a young judge. He had insisted that the "animus possidendi" of some party should be proved like any other fact. But Jhering does not draw general consequences from his story.
Schlossmann, in his treatise on contracts162 declared that all implied contracts were nothing but legal fictions, saying "that this concept means nothing but that under certain circumstances a court will have to decide as if there had been a real contract." That may be an exaggerated generalization, and yet it contains a kernel of truth which ought to be laid bare.