Harvard Law Review Volume 15

Harvard Law Review Volume 15

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1902 edition. Excerpt: ...it as so obviously terminating the obligation as not to require expression, failure of performance should be excused." The proper inquiry is "Would the parties, had their attention been called to the contingency, have thought it unnecessary to provide for it in the contract? That is not altering or adding to the contract, but merely construing it as already made by the parties." This does not mean that performance is excused by force of an implied condition, which, as above stated, would be purely fictitious. The writer's meaning seems to be that as the plan of the parties may be presumed to have been to make a just contract, and as in justice certain contingencies ought to terminate the obligation, the words by which the parties bind themselves, although apparently absolute in form, may be construed to mean merely that the parties are bound, provided no such contingencies occur. The suggestion is certainly ingenious, but is in truth open to the same objection as the rule of implied conditions. Had the arties carefully considered all the possible contingencies, they would doubtless have agreed that such a contract was just, but their minds were concerned only with the making of a contract which they regarded as certain of performance, and they therefore used words which clearly imposed an absolute obligation, and which have always been regarded in that light at law. To construe them otherwise would be a clear violation of the meaning of words. The truth of the matter is that the courts of law, recognizing the injustice of enforcing under all circumstances an absolute legal obli ation, have interposed in certain cases what must be regarded as an equitable efense. Such a recognition of equitable principles at law is...
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Product details

  • Paperback | 466 pages
  • 189 x 246 x 24mm | 826g
  • United States
  • English
  • black & white illustrations
  • 1236941543
  • 9781236941541