In relation to legal transactions, it is not enough to show the consequences growing out of the principle of the autonomy of the will. It is also necessary, and in fact that is the first task of the court where a case is to be decided on the principles of free decision, to analyze the elements constituting the principle and to define its main outlines. What are the circumstances under which the mere will of the parties makes the law of the case? Some people have erred by assuming that in order to solve this problem one had but to consider the intentions of the parties and the circumstances from which these can be inferred. That is plainly a begging of the question, and a confusion of the effects with the conditions from which they arise. In order to determine the latter, aside from the expressions of the parties to the transaction themselves, one must obviously take into account both the social and individual interests involved. These interests must not only be manifest and firmly insisted on, without psychological duress, so to speak, and with a degree of consciousness psychologically certain, but also make it necessary that the positive law will recognize without hesitancy the obligatory character of the transaction.
If we could only bring ourselves to be guided by these ideas, and rid ourselves at the same time of the obsession of abstract concepts, which here as everywhere is pernicious, we might perhaps succeed in extending very notably our theory of the formation of contracts. Especially with regard to questions for the solution of which the statute really affords no help at all, as for instance contracts between absent parties,5 would we not soon learn to add to the merely psychological considerations, which are too often made the only basis of our theory, other considerations drawn from a wider reality? Such other considerations would show all the more perfectly what the requirements of practical life and the motives inspiring it may be, because they would tend away from rigid rules and be fit to vary and supplement the conclusions drawn from the underlying principle without failing to give it due effect, so as to satisfy all the interests involved. I believe that it is not difficult to show how the modern development of the law even now tends in this direction. One can be but glad of this, and may wish that the movement become still more decidedly so, when he notices also in some recent theoretical works an obvious inclination to make use of analogous methods of reasoning.
In a similar manner, it is also likely that the law will become less exacting regarding the complete and perfect meeting of the wills which our all too rigid theory proclaims necessary in order that there shall be any contract at all. As a matter of fact, our practice in this regard is not at all in agreement with our theory, but rather raises an irresistible protest against the pretensions of our strict logic, although we may pass the matter over in silence. For instance, our theory insists that the subject-matter of a contract must be definitely expressed or at least that it must be definable from the terms of the contract itself; yet do we not every day see contracts for piecework entered into, without any definite statement of the price to be paid for the completed job? Or who would think, when he has given a job to some cabinetmaker or locksmith without stipulating for the compensation, or when he has been treated by a physician without first agreeing on his fee, that such a contract could not be enforced and that he may repudiate his obligation because the sum to be paid had not been fixed beforehand or could not be ascertained from the terms of the contract itself? We know well enough that in such cases the court will not hesitate to complete the contract the parties have left defective. I suppose that it will be said: Such results are to be explained by the fact that there was a tacit understanding, a fixed usage, which in good faith becomes a part of every such contract. That is precisely what I insist on, that the influence of good faith, which inheres in the making of every contract, should be frankly recognized; I am persuaded that this new element, introduced into a theory which heretofore recognized nothing but logical deductions, would have a most beneficial effect by softening its outlines and making its structure less narrow.
5 "Non obstat," section 932, line 2, of the Civil Code.
Furthermore, I have no doubt that the same trend of ideas will lead us to recognize this: an imperfect and incomplete understanding between two persons regarding the essential points of the business with which they are mutually dealing, while it cannot establish any binding obligation, according to the strict doctrine, may yet, in a number of cases, be treated like an actual contract, and will not be left altogether without legal possibility of enforcement. Here again some very practical observations will give us the foundation for some useful steps forward in the development of our science. It will presently occur to us to ask whether in fact the meeting of the minds is ever exact. Perhaps the result of our investigation will be that we shall attain a clearer view of the following truth, of which we are certainly not ignorant even now, but which we have hesitated to adopt in its entirety. The theory of contract, which has heretofore been dominated altogether by the psychological idea of agreement, will have to look at that idea hereafter in the light thrown upon it by the facts of life in society. In other words, it is not so important for the lawyer to know under what conditions it is metaphysically incontestable that the minds of the parties have met, as to know under what circumstances the approach of their wills is close enough to deserve being upheld by the law. After we have reached this point, it seems clear to me that the problem can be further solved only by a detailed examination of the nature of the circumstances surrounding the case; and this should be made not merely from the point of view of individual psychology, but even more from that of social psychology, of ethical and economic requirements, and more generally still, of all considerations which civilized life, interpreted by the aid of science, may suggest.