1890-91. J SIXTEENTH MEETING. 29 



cast a pall over the English-speaking world, and adverted to the fact 

 that the later or historical school of legal thought in England, of which 

 Judge Stephen is so prominent a member, is pronouncedly in favour of 

 codification. He confined himself to two aspects of his subject, defini- 

 tion and division: (i) What is a contract in English law? (2) How 

 should contracts be classified? (i) As an objective point Addison's 

 definition was taken, that a contract is " an agreement by which two 

 parties mutually promise and engage, or one of them promises and 

 engages, to the other to give some particular thing or to do or abstain 

 from doing some particular act." While a skilled profession may work 

 well with almost any kind of instrument this definition is inadmissible 

 for codification purposes. It is too wide, too narrow, and unsuited to 

 our law. It is too wide because it includes gifts and agreements without 

 consideration, which are not contracts, and practically necessitates a 

 division of the subject into contracts valid and contracts invalid, illeg-al 

 or void, the latter of which are treated by way of exceptions, under such 

 headings as fraud, mistake, misrepresentation, or the vaguer term of 

 public policy. The exceptions outweigh the rule, and are in themselves 

 cross divisions. Mr. Greenwood gives 580 sub-classes of exceptions 

 coming under public policy without exhausting his subject. But, as 

 Mr. Holmes shows, a void contract is no contract at all. The Indian 

 codifiers when face to face with the problem limited their definition to 

 agreements " enforceable at law," and are followed by later text writers. 

 The definition is also too narrow. A little straining of language may 

 bring the greater number of unilateral contracts under the head of 

 " agreements," but not so records, the highest form of contract ; nor 

 implied contracts, one of its chief divisions ; nor enforceable claims 

 under statutes, charters, by-laws, a department of law which, particularly 

 in respect to companies, is rapidly increasing and must continue to 

 develop as industrial processes multiply and consolidate. Thirdly,^ 

 Addison's definition is taken from the French writer Pothier, is a sum- 

 mation, in its legal form, of the theoretic individualism so prevalent last 

 century on the European continent, and is an exotic imposed on our 

 legal system. While individual right is a wide and growing principle in 

 our contractual law, the idea of duty or obligation in the wider sense is 

 anterior to it in point of time, and of more general operation to-day. 

 The very word contract is of late date with us. Our law of contract 

 has three stages of development : obligations created and enforced by 

 law analogous to status : those created by act of parties in presence of 

 or with the permission of the court : the extension of this idea, by way 

 of analogy, to acts of the parties outside the court, at first within strict^ 

 then within wider limits, but never at large. The placing of agreement 



