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nstruction that exceptional risks were intended to be assumed。 The foregoing analysis is believed to show that the result which has been reached by the courts on grounds of practical good sense； falls in with the true theory of contract under the common law。
The discussion of the nature of a promise has led me to analyze contract and the consequences of contract somewhat in advance of their place。 I must say a word more concerning the facts which constitute a promise。 It is laid down； with theoretical truth； that； besides the assurance or offer on the one side； there must be an acceptance on the other。 But I find it hard to think of a case where a simple contract fails to be made； which could not be accounted for on other grounds； generally by the want of relation between assurance or offer and consideration as reciprocal inducements each of the other。 Acceptance of an offer usually follows by mere implication from the furnishing of the consideration； and inasmuch as by our law an accepted offer； or promise； until the consideration is furnished； stands on no different footing from an offer not yet accepted； each being subject to revocation until that time； and each continuing ＇304＇ until then unless it has expired or has been revoked； the question of acceptance is rarely of practical importance。
Assuming that the general nature of consideration and promise is understood； some questions peculiar to bilateral contracts remain to be considered。 These concern the sufficiency of the consideration and the moment when the contract is made。
A promise may be a consideration for a promise； although not every promise for every other。 It may be doubted whether a promise to make a gift of one hundred dollars would be supported by a promise to accept it。 But in a case of mutual promises respectively to transfer and to accept unpaid shares in a railway company； it has been held that a binding contract was made。 Here one party agrees to part with something which may prove valuable； and the other to assume a liability which may prove onerous。 /1/
But now suppose that there is no element of uncertainty except in the minds of the parties。 Take； for instance； a wager on a past horse…race。 It has been thought that this would amount to an absolute promise on one side； and no promise at all on the other。 /2/ But this does not seem to me sound。 Contracts are dealings between men； by which they make arrangements for the future。 In making such arrangements the important thing is； not what is objectively true； but what the parties know。 Any present fact which is unknown to the parties is just as uncertain for the purposes of making an arrangement at this moment； as any future fact。 It is therefore a detriment to undertake to be ready to pay if the event turns out not ＇305＇ to have been as expected。 This seems to be the true explanation why forbearance to sue upon a claim believed the plaintiff to be good is a sufficient consideration； although the claim was bad in fact； and known by the defendant to be bad。 /1/ Were this view unsound； it is hard to see how wagers on any future event； except a miracle； could be sustained。 For if the happening or not happening of the event is subject to the law of causation； the only uncertainty about it is in our foresight； not in its happening。
The question when a contract is made arises for the most part with regard to bilateral contracts by letter； the doubt being whether the contract is complete at the moment when the return promise is put into the post； or at the moment when it is received。 If convenience preponderates in favor of either view； that is a sufficient reason for its adoption。 So far as merely logical grounds go； the most ingenious argument in favor of the later moment is Professor Langdell's。 According to him the conclusion follows from the fact that the consideration which makes the offer binding is itself a promise。 Every promise； he says； is an offer before it is a promise； and the essence of an offer is that it should be communicated。 /2/ But this reasoning seems unsound。 When； as in the case supposed； the consideration for the return promise has been put into the power of the offeree and the return promise has been accepted in advance； there is not an instant； either in time or logic； when the return promise is an offer。 It is a promise and a term of a binding contract as soon as it is anything。 An offer is a revocable and unaccepted
communication of willingness to promise。 ＇306＇ When an offer of a certain bilateral contract has been made； the same contract cannot be offered by the other side。 The so…called offer would neither be revocable nor unaccepted。 It would complete the contract as soon as made。
If it be said that it is of the essence of a promise to be communicated； whether it goes through the stage of offer or not； meaning by communicated brought to the actual knowledge of the promisee； the law is believed to be otherwise。 A covenant is binding when it is delivered and accepted； whether it is read or not。 On the same principle； it is believed that； whenever the obligation is to be entered into by a tangible sign； as； in the case supposed； by letter containing the return promise； and the consideration for and assent to the promise are already given； the only question is when the tangible sign is sufficiently put into the power of the promisee。 I cannot believe that； if the letter had been delivered to the promisee and was then snatched from his hands before he had read it； there would be no contract。 /l / If I am right； it appears of little importance whether the post…office be regarded as agent or bailee for the offerer； or as a mere box to which he has access。 The offeree； when he drops the letter containing the counter…promise into the letter…box； does an overt act； which by general understanding renounces control over the letter； and puts it into a third hand for the benefit of the offerer； with liberty to the latter at any moment thereafter to take it。
The principles governing revocation are wholly different。 One to whom an offer is made has a right to assume that it remains open according to its terms until he has actual ＇307＇ notice to the contrary。 The effect of the communication must be destroyed by a counter communication。 But the making of a contract does not depend on the state of the parties' minds； it depends on their overt acts。 When the sign of the counter promise is a tangible object； the contract is completed when the dominion over that object changes。
＇308＇ LECTURE IX。
CONTRACT。… III。 VOID AND VOIDABLE。
THE elements of fact necessary to call a contract into existence； and the legal consequences of a contract when formed； have been discussed。 It remains to consider successively the cases in which a contract is said to be void； and those in which it is said to be voidable；in which； that is； a contract fails to be made when it seems to have been； or； having been made； can be rescinded by one side or the other； and treated as if it had never been。 I take up the former class of cases first。
When a contract fails to be made； although the usual forms have been gone through with； the ground of failure is commonly said to be mistake； misrepresentation； or fraud。 But I shall try to show that these are merely dramatic circumstances； and that the true ground is the absence of one or more of the primary elements； which have been shown； or are seen at once； to be necessary to the existence of a contract。
If a man goes through the form of making a contract with A through B as A's agent； and B is not in fact the agent of A； there is no contract； because there is only one party。 The promise offered to A has not been accepted by him； and no consideration has moved from him。 In such a case； although there is generally mistake on one side and fraud on the other； it is very clear that no special ＇309＇ doctrine need be resorted to； because the primary elements of a contract explained in the last Lecture are not yet present。
Take next a different case。 The defendant agreed to buy； and the plaintiff agreed to sell； a cargo of cotton； 〃to arrive ex Peerless from Bombay。〃 There were two such vessels sailing from Bombay； one in October； the other in December。 The plaintiff meant the latter； the defendant the former。 It was held that the defendant was not bound to accept the cotton。 /1/ It is commonly said that such a contract is void； because of mutual mistake as to the subject… matter； and because therefore the parties did not consent to the same thing。 But this way of putting it seems to me misleading。 The law has nothing to do with the actual state of the parties' minds。 In contract； as elsewhere； it must go by externals； and judge parties by their conduct。 If there had been but one 〃Peerless；〃 and the defendant had said 〃Peerless〃 by mistake； meaning 〃Peri；〃 he would have been bound。 The true ground of the decision was not that each party meant a different thing from the other； as is implied by the explanation which has been mentioned； but that each said a different thing。 The plaintiff offered one thing； the defendant expressed his assent to another。
A proper name； when used in business or in pleading； /2/ means one individual thing； and no other； as every one