The Sanctity of Contracts in English Law - College of Social ...

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16 Growth of Sanctity of Contracts" the will theory." This was founded on the viewthat a contract was the result of a real agreementbetween two or more parties and that such a unionof wills was inherently worthy of respect; for itextended the reach of an individual's personality andthereby tended to increase his freedom and worth inthe community.The view that the essence of contract is agreement,and the essence of agreement is a union of wills, wasnot a new nineteenth-century conception. For asSir William Holdsworth has pointed out, 36 it wasclearly recognised by the lawyers of the sixteenthcentury. Thus in Broivning v. Beston se (a case whichwas much argued in 1552 and 1553) Counsel (SerjeantCatline by name) contended in his argument that " incontracts it is not material which of the parties speakthe words, if the other agrees to them, for the agreementof the minds of the parties is the only thingthe law respects in contracts, and such words asexpress the assent of the parties, and have substancein them, is sufficient."But it was throughout the nineteenth century thatthe doctrine bloomed in all its glory. Unfortunatelyits protagonists were divided over one fundamentalaspect of it. Some argued that the wills of the partieshad to be in reality at one, others that it wassufficient that the parties could be taken objectivelyto have expressed their agreement without havingbeen really ad idem. Sir William Anson writing in35 See H.B.L., Vol. VIII, p. 1.36(15S5) 1 Plowden 131, 140-141.
The " Will Theory " of Contracts 171882 stated his position in the controversy asfollows 37 :" While the consensus ad idem or agreement isthe ideal basis of contract, the court will assumethe existence as a necessary sequence of certainovert acts of the parties. Their minds mustneeds be out of reach of a court of law, but wherethey exhibit all the phenomena of agreement theexistence of agreement will be taken for granted."In the latest edition of Cheshire and Fifoot on theLaw of Contract 3S the matter is put in this way :" A contracting party ... is bound becausehe has agreed to be bound. Agreement, however,is not a mental state but an act, and, as an act,is a matter of inference from conduct. Theparties are to be judged not by what is in theirminds, but by what they have said or written ordone."While the positive school drew a sharp line betweenpositive law on the one hand and morals and ethicson the other, the advocates of the will theory saw inlaw a rational means of attaining a spiritual endthrough the freedom of the will. So they threw intosome confusion once more the place of the moral andthe ethical elements in legal conceptions.CONCLUSIONThe conclusion at which I have arrived during mystudy of the development of the general law of37 Principles of the English, Law of Contract, 2nd ed., p. 13.38 4th ed. at pp. 21 22.
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CHAPTER 4A COMPARISON AND CONCLUSIO
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The Obligation of Contracts Clause
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Conclusions 75fundamental changes o
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Conclusions 77Mr. Justice Holmes th
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