Chapter 6

Continuants.

The functions pnand qn, regarded as functions of a1, ..., an, b2, ..., bndetermined by the relations

pn= anpn-1+ bnpn-2,qn= anqn-1+ bnqn-2,

with the conditions p1= a1, p0= 1; q2= a2, q1= 1, q0= 0, have been studied under the name ofcontinuants. The notation adopted is

a1,

b2, ..., bn

a2, ..., an

and it is evident that we have

a1,

b3, ..., bn

a3, ..., an

The theory of continuants is due in the first place to Euler. The reader will find the theory completely treated in Chrystal’sAlgebra, where will be found the exhibition of a prime number of the form 4p + 1 as the actual sum of two squares by means of continuants, a result given by H. J. S. Smith.

The continuant

a1,

b2, b3, ..., bn

a2, a3, ..., an

is also equal to the determinant

-1

an-1

-1

from which point of view continuants have been treated by W. Spottiswoode, J. J. Sylvester and T. Muir. Most of the theorems concerning continued fractions can be thus proved simply from the properties of determinants (see T. Muir’sTheory of Determinants, chap. iii.).

Perhaps the earliest appearance in analysis of a continuant in its determinant form occurs in Lagrange’s investigation of the vibrations of a stretched string (see Lord Rayleigh,Theory of Sound, vol. i. chap. iv.).

The Conversion of Series and Products into Continued Fractions.

1. A continued fraction may always be found whose nthconvergent shall be equal to the sum to n terms of a given series or the product to n factors of a given continued product. In fact, a continued fraction

can be constructed having for the numerators of its successive convergents any assigned quantities p1, p2, p3, ..., pn, and for their denominators any assigned quantities q1, q2, q3, ..., qn...

The partial fraction bn/ancorresponding to the nthconvergent can be found from the relations

pn= anpn-1+ bnpn-2, qn= anqn-1+ bnqn-2;

and the first two partial quotients are given by

b1= p1, a1= q1, b1a2= p2, a1a2+ b2= q2.

If we form then the continued fraction in which p1, p2, p3, ..., pnare u1, u1+ u2, u1+ u2+ u3, ..., u1+ u2+ ..., un, and q1, q2, q3, ..., qnare all unity, we find the series u1+ u2+ ..., unequivalent to the continued fraction

which we can transform into

a result given by Euler.

2. In this case the sum to n terms of the series is equal to the nthconvergent of the fraction. There is, however, a different way in which a Series may be represented by a continued fraction. We may require to represent the infinite convergent power series a0+ a1x + a2x² + ... by an infinite continued fraction of the form

Here the fraction converges to the sum to infinity of the series. Its nthconvergent is not equal to the sum to n terms of the series. Expressions for β0, β1, β2, ... by means of determinants have been given by T. Muir (Edinburgh Transactions, vol. xxvii.).

A method was given by J. H. Lambert for expressing as a continued fraction of the preceding type the quotient of two convergent power series. It is practically identical with that of finding the greatest common measure of two polynomials. As an instance leading to results of some importance consider the series

We have

whence we obtain

which may also be written

By putting ± x² ⁄ 4 for x in F(0,x) and F(1,x), and putting at the same time γ = 1 ⁄ 2, we obtain

These results were given by Lambert, and used by him to prove that π and π² incommensurable, and also any commensurable power of e.

Gauss in his famous memoir on the hypergeometric series

gave the expression for F(α, β + 1, γ + 1, x) ÷ F(α, β, γ, x) as a continued fraction, from which if we put β = 0 and write γ - 1 for γ, we get the transformation

where

From this we may express several of the elementary series as continued fractions; thus taking α = 1, γ = 2, and putting x for -x, we have

Taking γ = 1, writing x ⁄ α for x and increasing α indefinitely, we have

For some recent developments in this direction the reader may consult a paper by L. J. Rogers in theProceedings of the London Mathematical Society(series 2, vol. 4).

Ascending Continued Fractions.

There is another type of continued fraction called the ascending continued fraction, the type so far discussed being called the descending continued fraction. It is of no interest or importance, though both Lambert and Lagrange devoted some attention to it. The notation for this type of fraction is

It is obviously equal to the series

Historical Note.

The invention of continued fractions is ascribed generally to Pietro Antonia Cataldi, an Italian mathematician who died in 1626. He used them to represent square roots, but only for particular numerical examples, and appears to have had no theory on the subject. A previous writer, Rafaello Bombelli, had used them in his treatise on Algebra (about 1579), and it is quite possible that Cataldi may have got his ideas from him. His chief advance on Bombelli was in his notation. They next appear to have been used by Daniel Schwenter (1585-1636) in aGeometrica Practicapublished in 1618. He uses them for approximations. The theory, however, starts with the publication in 1655 by Lord Brouncker of the continued fraction

as an equivalent of π ⁄ 4. This he is supposed to have deduced, no one knows how, from Wallis’ formula for 4 ⁄ π viz.

John Wallis, discussing this fraction in hisArithmetica Infinitorum(1656), gives many of the elementary properties of the convergents to the general continued fraction, including the rule for their formation. Huygens (Descriptio automati planetarii, 1703) uses the simple continued fraction for the purpose of approximation when designing the toothed wheels of hisPlanetarium. Nicol Saunderson (1682-1739), Euler and Lambert helped in developing the theory, and much was done by Lagrange in his additions to the French edition of Euler’sAlgebra(1795). Moritz A. Stern wrote at length on the subject inCrelle’s Journal(x., 1833; xi., 1834; xviii., 1838). The theory of the convergence of continued fractions is due to Oscar Schlömilch, P. F. Arndt, P. L. Seidel and Stern. O. Stolz, A. Pringsheim and E. B. van Vleck have written on the convergence of infinite continued fractions with complex elements.

References.—For the further history of continued fractions we may refer the reader to two papers by Gunther and A. N. Favaro,Bulletins di bibliographia e di storia delle scienze mathematische e fisicke, t. vii., and to M. Cantor,Geschichte der Mathematik, 2nd Bd. For text-books treating the subject in great detail there are those of G. Chrystal in English; Serret’sCours d`algèbre supérieurein French; and in German those of Stern, Schlömilch, Hatterdorff and Stolz. For the application of continued fractions to the theory ofirrational numbers there is P. Bachmann’sVorlesungen über die Natur der Irrationalzahnen(1892). For the application of continued fractions to the theory of lenses, see R. S. Heath’sGeometrical Optics, chaps. iv. and v. For an exhaustive summary of all that has been written on the subject the reader may consult Bd. 1 of theEncyklopädie der mathematischen Wissenschaften(Leipzig).

(A. E. J.)

CONTOUR, CONTOUR-LINE(a French word meaning generally “outline,” from the Med. Lat.contornare, to round off), in physical geography a line drawn upon a map through all the points upon the surface represented that are of equal height above sea-level. These points lie, therefore, upon a horizontal plane at a given elevation passing through the land shown on the map, and the contour-line is the intersection of that horizontal plane with the surface of the ground. The contour-line of 0, ordatum level, is the coastal boundary of any land form. If the sea be imagined as rising 100 ft., a new coast-line, with bays and estuaries indented in the valleys, would appear at the new sea-level. If the sea sank once more to its former level, the 100-ft. contour-line with all its irregularities would be represented by the beach mark made by the sea when 100 ft. higher. If instead of receding the sea rose continuously at the rate of 100 ft. per day, a series of levels 100 ft. above one another would be marked daily upon the land until at last the highest mountain peaks appeared as islands less than 100 ft. high. A record of this series of advances marked upon a flat map of the original country would give a series of concentric contour-lines narrowing towards the mountain-tops, which they would at last completely surround. Contour-lines of this character are marked upon most modern maps of small areas and upon all government survey and military maps at varying intervals according to the scale of the map.

CONTRABAND(Fr.contrebande, fromcontra, against, andbannum, Low Lat. for “proclamation”), a term given generally to illegal traffic; and particularly, as “contraband of war,” to goods, &c., which subjects of neutral states are forbidden by international law to supply to a belligerent.

According to current practice contraband of war is of two kinds: (1) absolute or unconditional contraband, i.e. materials of direct application in naval or military armaments; and (2) conditional contraband, consisting of articles which are fit for, but not necessarily of direct application to, hostile uses. There is much difference of opinion among international jurists and states, however, as to the specific materials and articles which may rightfully be declared by belligerents to belong to either class. There is also disagreement as to the belligerent right where the immediate destination is a neutral but the ultimate an enemy port.

An attempt was made at the Second Hague Conference to come to an agreement on the chief points of difference. The British delegates were instructed even to abandon the principle of contraband of war altogether, subject only to the exclusion by blockade of neutral trade from enemy ports. In the alternative they were to do their utmost to restrict the definition of contraband within the narrowest possible limits, and to obtain exemption of food-stuffs destined for places other than beleaguered fortresses and of raw materials required for peaceful industry. Though the discussions at the conference did not result in any convention, except on the subject of mails, it was agreed among the leading maritime states that an early attempt should be made to codify the law of naval war generally, in connexion with the establishment of an international prize court (seePrize).

Meanwhile, on the subject of mails, important articles were adopted which figure in the “Convention on restrictionsMails.in the right of capture” (No. 11 of the series as set out in the General Act, seePeace Conference). They are as follows:—

Art. I.—The postal correspondence of neutrals or belligerents, whatever its official or private character may be, found on the high seas on board a neutral or enemy ship is inviolable. If the ship is detained, the correspondence is forwarded by the captor with the least possible delay.The provisions of the preceding paragraph do not apply, in case of violation of blockade, to correspondence destined for, or proceeding from, a blockaded port.Art. II.—The inviolability of postal correspondence does not exempt a neutral mail ship from the laws and customs of maritime war as to neutral merchant ships in general. The ship, however, may not be searched except when absolutely necessary, and then only with as much consideration and expedition as possible.

The provisions of the preceding paragraph do not apply, in case of violation of blockade, to correspondence destined for, or proceeding from, a blockaded port.

Art. II.—The inviolability of postal correspondence does not exempt a neutral mail ship from the laws and customs of maritime war as to neutral merchant ships in general. The ship, however, may not be searched except when absolutely necessary, and then only with as much consideration and expedition as possible.

As regards food-stuffs Great Britain has long and consistently held that provisions and liquors fit for the consumption of the enemy’s naval or military forces are contraband.Foodstuffs and pre-emption.Her Prize Act, however, provides a palliative, in the case of “naval or victualling stores,” for the penalty attaching to absolute contraband, the lords of the admiralty being entitled to exercise a right of pre-emption over such stores, i.e. to purchase them without condemnation in a prize court. In practice, purchases are made at the market value of the goods, with an additional 10% for loss of profit.

On the continent of Europe no such palliative has yet been adopted; but moved by the same desire to distinguish unmistakable from, so to speak, constructive contraband, and to protect trade against the vexation of uncertainty, many continental jurists have come to argue conditional contraband away altogether. This change of opinion has especially manifested itself in the discussions on the subject in the Institute of International Law, a body composed exclusively of recognized international jurists. The rules this body adopted in 1896, though they do not represent the unanimous feeling of its members, may be taken as the view of a large proportion of them. The majority comprised German, Danish, Italian, Dutch and French specialists. The rules adopted contain a clause, which, after declaring conditional contraband abolished, states that: “Nevertheless the belligerent has, at his option and on condition of paying an equitable indemnity, a right of sequestration or pre-emption as to articles (objets) which, on their way to a port of the enemy, may serve equally in war or in peace.” This rule, it is seen, is of wider application than the above-mentioned provision of the British Prize Act. To become binding in its existing form, either an alteration of the text of the Declaration of Paris or a modification in the wording of the clause would be necessary, seeing that under the Declaration of Paris “the neutral flag covers enemy goods, except contraband of war.” It may be said that, in so far as the continent is concerned, expert opinion is, on the whole, favourable to the recognition of conditional contraband in the form of a right of sequestration or pre-emption and within the limits Great Britain has shown a disposition to set to it as against herself.

As regards coal there is no essential difference between the position of coal to feed ships and that of provisions to feed men. Neither isper secontraband. At the West AfricanCoal.Conference in 1884 the Russian representative protested against its inclusion among contraband articles, but the Russian government included it in their declaration as to contraband on the outbreak of the Russo-Japanese War. In 1898 the British foreign office replied to an inquiry of the Newport Chamber of Commerce on the position of coal that: “Whether in any particular case coal is or is not contraband of war, is a matter prima facie for the determination of the Prize Court of the captor’s nationality, and so long as such decision, when given, does not conflict with well-established principles of international law, H.M.’s government will not be prepared to take exception thereto.” The practical applications of the law and usage of contraband in the Russo-Japanese War of 1904-5, however, brought out vividly the need of reform in these “well-established principles.”

The Japanese regulations gave rise to no serious difficulties. Those issued by Russia, on the other hand, led to much controversy between the British governmentControversy with Russia in Russo-Japanese War.and that of Russia, in connexion with the latter’s pretension to class coal, rice, provisions, forage, horses and cotton with arms, ammunition, explosives, &c., as absolute contraband. On June 1, 1904, Lord Lansdowne expressed the surprise with which the British government learnt that rice and provisions were to be treated as unconditionally contraband—“a step which they regarded as inconsistent withthe law and practice of nations.” They furthermore “felt themselves bound to reserve their rights by also protesting against the doctrine that it is for the belligerent to decide what articles are as a matter of course, and without reference to other considerations, to be dealt with as contraband of war, regardless of the well-established rights of neutrals”; nor would the British government consider itself bound to recognize as valid the decision of any prize court which violated those rights. It did not dispute the right of a belligerent to take adequate precautions for the purpose of preventing contraband of war, in the hitherto accepted sense of the words, from reaching the enemy; but it objected to the introduction of a new doctrine under which “the well-understood distinction between conditional and unconditional contraband was altogether ignored, and under which, moreover, on the discovery of articles alleged to be contraband, the ship carrying them was, without trial and in spite of her neutrality, subjected to penalties which are reluctantly enforced even against an enemy’s ship.” (See section 40 of Russian Instructions on Procedure in Stopping, Examining and Seizing Merchant Vessels, published inLondon Gazetteof March 18, 1904.) In particular circumstances provisions might acquire a contraband character, as, for instance, if they should be consigned direct to the army or fleet of a belligerent, or to a port where such fleet might be lying, and if facts should exist raising the presumption that they were about to be employed in victualling the fleet of the enemy. In such cases it was not denied that the other belligerent would be entitled to seize the provisions as contraband of war, on the ground that they would afford material assistance towards the carrying on of warlike operations. But it could not be admitted that if such provisions were consigned to the port of a belligerent (even though it should be a port of naval equipment) they should therefore be necessarily regarded as contraband of war. The test was whether there were circumstances relating to any particular cargo to show that it was destined for military or naval use.

The Russian government replied that they could not admit that articles of dual use when addressed to private individuals in the enemy’s country should be necessarily free from seizure and condemnation, since provisions and such articles of dual use, though intended for the military or naval forces of the enemy, would obviously, under such circumstances, be addressed to private individuals, possibly agents or contractors for the naval or military authorities.

Lord Lansdowne in answer stated that while H.M. government did not contend that the mere fact that the consignee was a private person should necessarily give immunity from capture, they held that to take vessels for adjudication merely because their destination was the enemy’s country would be vexatious, and constitute an unwarrantable interference with neutral commerce. To render a vessel liable to such treatment there should be circumstances giving rise to a reasonable suspicion that the provisions were destined for the enemy’s forces, and it was in such a case for the captor “to establish the fact of destination for the enemy’s forces before attempting to procure their condemnation” (September 30, 1904).

The protests of Great Britain led to the reference of the subject by the Russian government to a departmental committee, with the result that on October 22, 1904, a rectifying notice was issued declaring that articles capable of serving for a warlike object, including rice and food-stuffs, should be considered as contraband of war, if they are destined for the government of the belligerent power or its administration or its army or its navy or its fortresses or its naval ports; or for the purveyors thereof; and that in cases where they were addressed to private individuals these articles should not be considered as contraband of war; but that in all cases horses and beasts of burden were to be considered as contraband. As regards cotton, explanations were given by the Russian government (May 11, 1904) that the prohibition of cotton applied only to raw cotton suitable for the manufacture of explosives, and not to yarn or tissues.

The carriage of belligerent despatches connected with the conduct of a war or of persons in the service of a belligerent state falls within the prohibition of contraband traffic,Analogues of contraband.but to distinguish such traffic from that of contraband, properly so called, the term applied to it in international law is “analogues of contraband.” The penalty attaching to such carriage necessarily varies according to the degree of the analogy.

Trade between neutrals has a prima facie right to go on, in spite of war, without molestation. But if the ultimate destination of goods, though shipped first to a neutral port,Continuous voyages.is enemy’s territory, then, according to the doctrine of “continuous voyages,” the goods may be treated as if they had been shipped to the enemy’s territory direct. The doctrine is entirely Anglo-Saxon in its origin1and development. Only in one case does it seem ever to have been actually put in force by a foreign prize court, namely, in the case of the “Doelwijk,” a Dutch vessel which was adjudged good prize by an Italian court on the ground that, although bound for Djibouti, a French port, it was laden with a provision of arms of a model which had gone out of use in Europe, and could only be destined for the Abyssinians, with whom Italy was at war.

The Institute of International Law in 1896 adopted the following rule on the subject:—

“Destination to the enemy is presumed, where the shipment is to one of the enemy ports, or to a neutral port, if it is unquestionably proved by the facts that the neutral port was only a state (étape) towards the enemy as the final destination of a single commercial operation.”

During the South African War (1899-1902) Great Britain was involved in controversy with Germany, who at first declined to recognize the existence of any rule which could interfere with trade between neutrals, the German vessels in question having been stopped on their way to a neutral port.

As stated above, the Second Hague Conference failed to come to any understanding on contraband, but the subject was exhaustively dealt with by the Conference of London (1908-1909) on the laws and customs of naval war, in the following articles:—

Art. 22.—The following articles may, without notice, be treated as contraband of war, under the name of absolute contraband: (1) Arms of all kinds, including arms for sporting purposes, and their distinctive component parts; (2) projectiles, charges and cartridges of all kinds, and their distinctive component parts; (3) powder and explosives specially prepared for use in war; (4) gun-mountings, limber boxes, limbers, military wagons, field forges and their distinctive component parts; (5) clothing and equipment of a distinctively military character; (6) all kinds of harness of a distinctively military character; (7) saddle, draught and pack animals suitable for use in war; (8) articles of camp equipment and their distinctive component parts; (9) armour plates; (10) warships, including boats, and their distinctive component parts of such a nature that they can only be used on a vessel of war; (11) implements and apparatus designed exclusively for the manufacture of munitions of war, for the manufacture or repair of arms, or war material for use on land or sea.Art. 23.—Articles exclusively used for war may be added to the list of absolute contraband by a declaration, which must be notified. Such notification must be addressed to the governments of other powers, or to their representatives accredited to the power making the declaration. A notification made after the outbreak of hostilities is addressed only to neutral powers.Art. 24.—The following articles, susceptible of use in war as well as for purposes of peace, may, without notice, be treated as contraband of war, under the name of conditional contraband: (1) Foodstuffs; (2) forage and grain, suitable for feeding animals; (3) clothing, fabrics for clothing, and boots and shoes, suitable for use in war; (4) gold and silver in coin or bullion; paper money; (5) vehicles of all kinds available for use in war, and their component parts; (6) vessels, craft and boats of all kinds; floating docks, parts of docks and their component parts; (7) railway material, both fixed and rolling-stock, and material for telegraphs, wireless telegraphs and telephones; (8) balloons and flying machines and their distinctive component parts, together with accessories and articles recognizable as intended for use in connexion with balloons and flying machines; (9) fuel; lubricants; (10) powder and explosives not specially prepared for use in war; (11) barbed wire and implements for fixing and cutting the same; (12) horseshoes and shoeing materials; (13) harness and saddlery; (14) field glasses, telescopes, chronometers and all kinds of nautical instruments.Art. 25.—Articles susceptible of use in war as well as for purposes of peace, other than those enumerated in Articles 22 and 24, may be added to the list of conditional contraband by a declaration, which must be notified in the manner provided for in the second paragraph of Article 23.Art. 26.—If a power waives, so far as it is concerned, the right to treat as contraband of war an article comprised in any of the classes enumerated in Articles 22 and 24, such intention shall be announced by a declaration, which must be notified in the manner provided for in the second paragraph of Article 23.Art. 27.—Articles which are not susceptible of use in war may not be declared contraband of war.Art. 28.—The following may not be declared contraband of war: (1) Raw cotton, wool, silk, jute, flax, hemp and other raw materials of the textile industries, and yarns of the same; (2) oil seeds and nuts; copra; (3) rubber, resins, gums and lacs; hops; (4) raw hides and horns, bones and ivory; (5) natural and artificial manures, including nitrates and phosphates for agricultural purposes; (6) metallic ores; (7) earths, clays, lime, chalk, stone, including marble, bricks, slates and tiles; (8) Chinaware and glass; (9) paper and paper-making materials; (10) soap, paint and colours, including articles exclusively used in their manufacture, and varnish; (11) bleaching powder, soda ash, caustic soda, salt cake, ammonia, sulphate of ammonia and sulphate of copper; (12) agricultural, mining, textile and printing machinery; (13) precious and semiprecious stones, pearls, mother-of-pearl and coral; (14) clocks and watches, other than chronometers; (15) fashion and fancy goods; (16) feathers of all kinds, hairs and bristles; (17) articles of household furniture and decoration; office furniture and requisites.Art. 29.—Likewise the following may not be treated as contraband of war: (1) Articles serving exclusively to aid the sick and wounded. They can, however, in case of urgent military necessity and subject to the payment of compensation, be requisitioned, if their destination is that specified in Article 30; (2) articles intended for the use of the vessel in which they are found, as well as those intended for the use of her crew and passengers during the voyage.Art. 30.—Absolute contraband is liable to capture if it is shown to be destined to territory belonging to or occupied by the enemy, or to the armed forces of the enemy. It is immaterial whether the carriage of the goods is direct or entails transhipment or a subsequent transport by land.Art. 31.—Proof of the destination specified in Article 30 is complete in the following cases: (1) When the goods are documented for discharge in an enemy port, or for delivery to the armed forces of the enemy; (2) when the vessel is to call at enemy ports only, or when she is to touch at an enemy port or meet the armed forces of the enemy before reaching the neutral port for which the goods in question are documented.Art. 32.—Where a vessel is carrying absolute contraband, her papers are conclusive proof as to the voyage on which she is engaged, unless she is found clearly out of the course indicated by her papers and unable to give adequate reasons to justify such deviation.Art. 33.—Conditional contraband is liable to capture if it is shown to be destined for the use of the armed forces or of a government department of the enemy state, unless in this latter case the circumstances show that the goods cannot in fact be used for the purposes of the war in progress. This latter exception does not apply to a consignment coming under Article 24 (4).Art. 34.—The destination referred to in Article 33 is presumed to exist if the goods are consigned to enemy authorities, or to a contractor established in the enemy country who, as a matter of common knowledge, supplies articles of this kind to the enemy. A similar presumption arises if the goods are consigned to a fortified place belonging to the enemy, or other place serving as a base for the armed forces of the enemy. No such presumption, however, arises in the case of a merchant vessel bound for one of these places if it is sought to prove that she herself is contraband. In cases where the above presumptions do not arise, the destination is presumed to be innocent. The presumptions set up by this article may be rebutted.Art. 35.—Conditional contraband is not liable to capture, except when found on board a vessel bound for territory belonging to or occupied by the enemy, or for the armed forces of the enemy, and when it is not to be discharged in an intervening neutral port. The ship’s papers are conclusive proof both as to the voyage on which the vessel is engaged and as to the port of discharge of the goods, unless she is found clearly out of the course indicated by her papers, and unable to give adequate reasons to justify such deviation.Art. 36.—Notwithstanding the provisions of Article 35, conditional contraband, if shown to have the destination referred to in Article 33, is liable to capture in cases where the enemy country has no seaboard.Art. 37.—A vessel carrying goods liable to capture as absolute or conditional contraband may be captured on the high seas or in the territorial waters of the belligerents throughout the whole of her voyage, even if she is to touch at a port of call before reaching the hostile destination.Art. 38.—A vessel may not be captured on the ground that she has carried contraband on a previous occasion if such carriage is in point of fact at an end.Art. 39.—Contraband goods are liable to condemnation.Art. 40.—A vessel carrying contraband may be condemned if the contraband, reckoned either by value, weight, volume or freight, forms more than half the cargo.Art. 41.—If a vessel carrying contraband is released, she may be condemned to pay the costs and expenses incurred by the captor in respect of the proceedings in the national prize court and the custody of the ship and cargo during the proceedings.Art. 42.—Goods which belong to the owner of the contraband and are on board the same vessel are liable to condemnation.Art. 43.—If a vessel is encountered at sea while unaware of the outbreak of hostilities or of the declaration of contraband which applies to her cargo, the contraband cannot be condemned except on payment of compensation; the vessel herself and the remainder of the cargo are not liable to condemnation or to the costs and expenses referred to in Article 41. The same rule applies if the master, after becoming aware of the outbreak of hostilities, or of the declaration of contraband, has had no opportunity of discharging the contraband. A vessel is deemed to be aware of the existence of a state of war, or of a declaration of contraband, if she left a neutral port subsequently to the notification to the power to which such port belongs of the outbreak of hostilities or of the declaration of contraband respectively, provided that such notification was made in sufficient time. A vessel is also deemed to be aware of the existence of a state of war if she left an enemy port after the outbreak of hostilities.Art. 44.—A vessel which has been stopped on the ground that she is carrying contraband, and which is not liable to condemnation on account of the proportion of contraband on board, may, when the circumstances permit, be allowed to continue her voyage if the master is willing to hand over the contraband to the belligerent warship. The delivery of the contraband must be entered by the captor on the log-book of the vessel stopped, and the master must give the captor duly certified copies of all relevant papers. The captor is at liberty to destroy the contraband that has been handed over to him under these conditions.

Art. 23.—Articles exclusively used for war may be added to the list of absolute contraband by a declaration, which must be notified. Such notification must be addressed to the governments of other powers, or to their representatives accredited to the power making the declaration. A notification made after the outbreak of hostilities is addressed only to neutral powers.

Art. 24.—The following articles, susceptible of use in war as well as for purposes of peace, may, without notice, be treated as contraband of war, under the name of conditional contraband: (1) Foodstuffs; (2) forage and grain, suitable for feeding animals; (3) clothing, fabrics for clothing, and boots and shoes, suitable for use in war; (4) gold and silver in coin or bullion; paper money; (5) vehicles of all kinds available for use in war, and their component parts; (6) vessels, craft and boats of all kinds; floating docks, parts of docks and their component parts; (7) railway material, both fixed and rolling-stock, and material for telegraphs, wireless telegraphs and telephones; (8) balloons and flying machines and their distinctive component parts, together with accessories and articles recognizable as intended for use in connexion with balloons and flying machines; (9) fuel; lubricants; (10) powder and explosives not specially prepared for use in war; (11) barbed wire and implements for fixing and cutting the same; (12) horseshoes and shoeing materials; (13) harness and saddlery; (14) field glasses, telescopes, chronometers and all kinds of nautical instruments.

Art. 25.—Articles susceptible of use in war as well as for purposes of peace, other than those enumerated in Articles 22 and 24, may be added to the list of conditional contraband by a declaration, which must be notified in the manner provided for in the second paragraph of Article 23.

Art. 26.—If a power waives, so far as it is concerned, the right to treat as contraband of war an article comprised in any of the classes enumerated in Articles 22 and 24, such intention shall be announced by a declaration, which must be notified in the manner provided for in the second paragraph of Article 23.

Art. 27.—Articles which are not susceptible of use in war may not be declared contraband of war.

Art. 28.—The following may not be declared contraband of war: (1) Raw cotton, wool, silk, jute, flax, hemp and other raw materials of the textile industries, and yarns of the same; (2) oil seeds and nuts; copra; (3) rubber, resins, gums and lacs; hops; (4) raw hides and horns, bones and ivory; (5) natural and artificial manures, including nitrates and phosphates for agricultural purposes; (6) metallic ores; (7) earths, clays, lime, chalk, stone, including marble, bricks, slates and tiles; (8) Chinaware and glass; (9) paper and paper-making materials; (10) soap, paint and colours, including articles exclusively used in their manufacture, and varnish; (11) bleaching powder, soda ash, caustic soda, salt cake, ammonia, sulphate of ammonia and sulphate of copper; (12) agricultural, mining, textile and printing machinery; (13) precious and semiprecious stones, pearls, mother-of-pearl and coral; (14) clocks and watches, other than chronometers; (15) fashion and fancy goods; (16) feathers of all kinds, hairs and bristles; (17) articles of household furniture and decoration; office furniture and requisites.

Art. 29.—Likewise the following may not be treated as contraband of war: (1) Articles serving exclusively to aid the sick and wounded. They can, however, in case of urgent military necessity and subject to the payment of compensation, be requisitioned, if their destination is that specified in Article 30; (2) articles intended for the use of the vessel in which they are found, as well as those intended for the use of her crew and passengers during the voyage.

Art. 30.—Absolute contraband is liable to capture if it is shown to be destined to territory belonging to or occupied by the enemy, or to the armed forces of the enemy. It is immaterial whether the carriage of the goods is direct or entails transhipment or a subsequent transport by land.

Art. 31.—Proof of the destination specified in Article 30 is complete in the following cases: (1) When the goods are documented for discharge in an enemy port, or for delivery to the armed forces of the enemy; (2) when the vessel is to call at enemy ports only, or when she is to touch at an enemy port or meet the armed forces of the enemy before reaching the neutral port for which the goods in question are documented.

Art. 32.—Where a vessel is carrying absolute contraband, her papers are conclusive proof as to the voyage on which she is engaged, unless she is found clearly out of the course indicated by her papers and unable to give adequate reasons to justify such deviation.

Art. 33.—Conditional contraband is liable to capture if it is shown to be destined for the use of the armed forces or of a government department of the enemy state, unless in this latter case the circumstances show that the goods cannot in fact be used for the purposes of the war in progress. This latter exception does not apply to a consignment coming under Article 24 (4).

Art. 34.—The destination referred to in Article 33 is presumed to exist if the goods are consigned to enemy authorities, or to a contractor established in the enemy country who, as a matter of common knowledge, supplies articles of this kind to the enemy. A similar presumption arises if the goods are consigned to a fortified place belonging to the enemy, or other place serving as a base for the armed forces of the enemy. No such presumption, however, arises in the case of a merchant vessel bound for one of these places if it is sought to prove that she herself is contraband. In cases where the above presumptions do not arise, the destination is presumed to be innocent. The presumptions set up by this article may be rebutted.

Art. 35.—Conditional contraband is not liable to capture, except when found on board a vessel bound for territory belonging to or occupied by the enemy, or for the armed forces of the enemy, and when it is not to be discharged in an intervening neutral port. The ship’s papers are conclusive proof both as to the voyage on which the vessel is engaged and as to the port of discharge of the goods, unless she is found clearly out of the course indicated by her papers, and unable to give adequate reasons to justify such deviation.

Art. 36.—Notwithstanding the provisions of Article 35, conditional contraband, if shown to have the destination referred to in Article 33, is liable to capture in cases where the enemy country has no seaboard.

Art. 37.—A vessel carrying goods liable to capture as absolute or conditional contraband may be captured on the high seas or in the territorial waters of the belligerents throughout the whole of her voyage, even if she is to touch at a port of call before reaching the hostile destination.

Art. 38.—A vessel may not be captured on the ground that she has carried contraband on a previous occasion if such carriage is in point of fact at an end.

Art. 39.—Contraband goods are liable to condemnation.

Art. 40.—A vessel carrying contraband may be condemned if the contraband, reckoned either by value, weight, volume or freight, forms more than half the cargo.

Art. 41.—If a vessel carrying contraband is released, she may be condemned to pay the costs and expenses incurred by the captor in respect of the proceedings in the national prize court and the custody of the ship and cargo during the proceedings.

Art. 42.—Goods which belong to the owner of the contraband and are on board the same vessel are liable to condemnation.

Art. 43.—If a vessel is encountered at sea while unaware of the outbreak of hostilities or of the declaration of contraband which applies to her cargo, the contraband cannot be condemned except on payment of compensation; the vessel herself and the remainder of the cargo are not liable to condemnation or to the costs and expenses referred to in Article 41. The same rule applies if the master, after becoming aware of the outbreak of hostilities, or of the declaration of contraband, has had no opportunity of discharging the contraband. A vessel is deemed to be aware of the existence of a state of war, or of a declaration of contraband, if she left a neutral port subsequently to the notification to the power to which such port belongs of the outbreak of hostilities or of the declaration of contraband respectively, provided that such notification was made in sufficient time. A vessel is also deemed to be aware of the existence of a state of war if she left an enemy port after the outbreak of hostilities.

Art. 44.—A vessel which has been stopped on the ground that she is carrying contraband, and which is not liable to condemnation on account of the proportion of contraband on board, may, when the circumstances permit, be allowed to continue her voyage if the master is willing to hand over the contraband to the belligerent warship. The delivery of the contraband must be entered by the captor on the log-book of the vessel stopped, and the master must give the captor duly certified copies of all relevant papers. The captor is at liberty to destroy the contraband that has been handed over to him under these conditions.

See Hautefeuille,Des droits et devoirs des nations neutres(2nd ed., 1858); Perels,Droit maritime international, traduit par Arendt (Paris, 1884); Moore,Digest of International Law(1906); L. Oppenheim,International Law(1907); Barclay,Problems of International Practice and Diplomacy(1907). See also Hall,International Law on Analogues of Contraband; Smith and Sibley,International Law as interpreted during the Russo-Japanese War, 1905, on “Malacca” and “Prinz Heinrich” cases (mails).

(T. Ba.)

1See Springbok case, 1866, 5 Wallace I.; onDoelwijkcase see Brusa,Rev. gén. de droit international public(1897); Fauchilleid.(1897), p. 291, alsoThe Times, April 15, May 25, June 1, 1897.

CONTRACT(Lat.contractus, fromcontrahere, to draw together, to bind), the legal term for a bargain or agreement; some writers, following the Indian Contract Act, confine the term to agreements enforceable by law: this, though not yet universally adopted, seems an improvement. Enforcement of good faith in matters of bargain and promise is among the most important functions of legal justice. It might not be too much to say that, next after keeping the peace and securing property against violence and fraud so that business may be possible, it is the most important. Yet we shall find that the importance of contract is developed comparatively late in the history of law. The commonwealth needs elaborate rules about contracts only when it is advanced enough in civilization and trade to have an elaborate system of credit. The Roman law of the empire dealt with contract, indeed, in a fairly adequate manner, though it never had a complete or uniform theory; and the Roman law, as settled by Justinian, appears to have satisfied the Eastern empire long after the Western nations had begun to recast their institutions, and the traders of the Mediterranean had struck out a cosmopolitan body of rules and custom known as the Law Merchant, which claimed acceptance in the name neither of Justinian nor of the Church, but of universal reason. It was amply proved afterwards that the foundations of the Roman system were strong enough to carry the fabric of modern legislation. But the collapse of the Roman power in western Christendom threw society back into chaos, and reduced men’s ideas of ordered justice and law to a condition compared with which the earliest Roman law known to us is modern.

In this condition of legal ideas, which it would be absurd to call jurisprudence, the general duty of keeping faith is not recognized except as a matter of religious or social observance. Those who desire to be assured of anything that lies in promise must exact an oath, or a pledge, or personal sureties; and even then the court of their people—in England the Hundred Court in the first instance—will do nothing for them in the first case, and not much in the two latter. Probably the settlement of a blood-feud, with provisions for the payment of the fineby instalments, was the nearest approach to a continuing contract, as we now understand the term, which the experience of Germanic antiquity could furnish. It is also probable that the performance of such undertakings, as it concerned the general peace, was at an early time regarded as material to the commonweal; and that these covenants of peace, rather than the rudimentary selling and bartering of their day, first caused our Germanic ancestors to realize the importance of putting some promises at any rate under public sanction. We have not now to attempt any reconstruction of archaic judgment and justice, or the lack of either, at any period of the darkness and twilight which precede the history of the middle ages. But the history of the law, and even the present form of much law still common to almost all the English-speaking world, can be understood only when we bear in mind that our forefathers did not start from any general conception of the state’s duty to enforce private agreements, but, on the contrary, the state’s powers and functions in this regard were extended gradually, unsystematically, and by shifts and devices of ingenious suitors and counsel, aided by judges, rather than by any direct provisions of princes and rulers. Money debts, it is true, were recoverable from an early time. But this was not because the debtor had promised to repay the loan; it was because the money was deemed still to belong to the creditor, as if the identical coins were merely in the debtor’s custody. The creditor sued to recover money, for centuries after the Norman Conquest, in exactly the same form which he would have used to demand possession of land; the action of debt closely resembled the “real actions,” and, like them, might be finally determined by a judicial combat; and down to Blackstone’s time the creditor was said to have a property in the debt—property which the debtor had “granted” him. Giving credit, in this way of thinking, is not reliance on the right to call hereafter for an act, the payment of so much current money or its equivalent, to be performed by the debtor, but merely suspension of the immediate right to possess one’s own particular money, as the owner of a house let for a term suspends his right to occupy it. This was no road to the modern doctrine of contract, and the passage had to be made another way.

In fact the old action of debt covered part of the ground of contract only by accident. It was really an action to recover any property that was not land; for the remedy ofAction for debt.a dispossessed owner of chattels, afterwards known as detinue, was only a slightly varying form of it. If the property claimed was a certain sum of money, it might be due because the defendant had received money on loan, or because he had received goods of which the agreed price remained unpaid; or, in later times at any rate, because he had become liable in some way by judgment, statute or other authority of law, to pay a fine or fixed penalty to the plaintiff. Here the person recovering might be as considerable as the lord of a manor, or as mean as a “common informer”; the principle was the same. In every case outside this last class, that is to say, whenever there was a debt in the popular sense of the word, it had to be shown that the defendant had actually received the money or goods; this value received came to be calledquid pro quo—a term unknown, to all appearance, out of England. Nevertheless the foundation of the plaintiff’s right was not bargain or promise, but the unjust detention by the defendant of the plaintiff’s money or goods.

We are not concerned here to trace the change from the ancient method of proof—oath backed by “good suit,”i.e.the oaths of an adequate number of friends andModes of proof.neighbours—through the earlier form of jury trial, in which the jury were supposed to know the truth of their own knowledge, to the modern establishment of facts by testimony brought before a jury who are bound to give their verdict according to the evidence. But there was one mode of proof which, after the Norman Conquest, made a material addition to the substantive law. This was the proof by writing, which means writing authenticated by seal. Proof by writing was admitted under Roman influence, but, once admitted, it acquired the character of being conclusive which belonged to all proof in early Germanic procedure. Oath, ordeal and battle were all final in their results. When the process was started there was no room for discussion. So the sealed writing was final too, and a man could not deny his own deed. We still say that he cannot, but with modern refinements. Thus the deed, being allowed as a solemn and probative document, furnished a means by which a man could bind himself, or rather effectually declare himself bound, to anything not positively forbidden by law. Whoever could afford parchment and the services of a clerk might have the benefit of a “formal contract” in the Roman sense of the term. At this day the form of deed called a bond or “obligation” is, as it stands settled after various experiments, extremely artificial; but it is essentially a solemn admission of liability, though its conclusive stringency has been relaxed by modern legislation and practice in the interest of substantial justice. By this means the performance of all sorts of undertakings, pecuniary and otherwise, could be and was legally secured. Bonds were well known in the 13th century, and from the 14th century onwards were freely used for commercial and other purposes; as for certain limited purposes they still are. The “covenant” of modern draftsmen is a direct promise made by deed; it occurs mainly as incident to conveyances of land. The medieval “covenant,”conventio, was, when we first hear of it, practically equivalent to a lease, and never became a common instrument of miscellaneous contracting, though the old books recognize the possibility of turning it to various uses of which there are examples; nor had it any sensible influence on the later development of the law. On the whole, in the old common law one could do a great deal by deed, but very little without deed. The minor bargains of daily life, so far as they involved mutual credit, were left to the jurisdiction of inferior courts, of the Law Merchant, and—last, not least—of the Church.

Popular custom, in all European countries, recognized simpler ways of pledging faith than parchment and seal. A handshake was enough to bind a bargain. Whatever secular lawFidel laesio.might say, the Church said it was an open sin to break plighted faith; a matter, therefore, for spiritual correction, in other words, for compulsion exercised on the defaulter by the bishop’s or the archdeacon’s court, armed with the power of excommunication. In this way the ecclesiastical courts acquired much business which was, in fact, as secular as that of a modern county court, with the incident profits. Medieval courts lived by the suitors’ fees. What were the king’s judges to do? However high they put their claims in the course of the rivalry between Church and Crown, they could not effectually prohibit the bishop or his official from dealing with matters for which the king’s court provided no remedy. Continental jurists had seen their way, starting from the Roman system as it was left by Justinian, to reduce its formalities to a vanishing quantity, and expand their jurisdiction to the full breadth of current usage. English judges could not do this in the 15th century, if they could ever have done so. Nor would simplification of the requisites of a deed, such as has now been introduced in many jurisdictions, have been of much use at a time when only a minority even of well-to-do laymen could write with any facility.

There was no principle and no form of action in English law which recognized any general duty of keeping promises. But could not breach of faith by which a party had suffered be treated as some kind of legal wrong? There was a known action of trespass and a known action of deceit, this last of a special kind, mostly for what would now be called abuse of the process of the court; but in the later middle ages it was an admitted remedy for giving a false warranty on a sale of goods. Also there was room for actions “on the case,” on facts analogous to those covered by the old writs, though not precisely within their terms. If the king’s judges were to capture this important branch of business from the clerical hands which threatened to engross it, the only way was to devise some new form of action on the case. There were signs, moreover, that the court of chancery would not neglect so promising a field if the common law judges left it open.

The mere fact of unfulfilled promise was not enough, in the eyes of medieval English lawyers, to give a handle to the law. But injury caused by reliance on another man’s undertakingAssumpsit.was different. The special undertaking or “assumption” creates a duty which is broken by fraudulent or incompetent miscarriage in the performance. I profess to be a skilled farrier, and lame your horse. It is no trespass, because you trusted the horse to me; but it is something like a trespass, and very like a deceit. I profess to be a competent builder; you employ me to build a house, and I scamp the work so that the house is not fit to live in. An action on the case was allowed without much difficulty for such defaults. The next step, and a long one, was to provide for total failure to perform. The builder, instead of doing bad work, does nothing at all within the time agreed upon for completing the house. Can it be said that he has done a wrong? At first the judges felt bound to hold that this was going too far; but suitors anxious to have the benefit of the king’s justice persevered, and in the course of the 15th century the new form of action, calledassumpsitfrom the statement of the defendant’s undertaking on which it was founded, was allowed as a remedy for non-performance as well as for faulty performance. Being an action for damages, and not for a certain amount, it escaped the strict rules of proof which applied to the old action of debt; being in form for a kind of trespass, and thus a privileged appeal to the king to do right for a breach of his peace, it escaped likewise the risk of the defendant clearing himself by oath according to the ancient popular procedure. Hence, as time went on, suitors were emboldened to use “assumpsit” as an alternative for debt, though it had been introduced only for cases where there was no other remedy. By the end of the 16th century they got their way; and it became a settled doctrine that the existence of a debt was enough for the court to presume an undertaking to pay it. The new form of action was made to cover the whole ground of informal contracts, and, by extremely ingenious devices of pleading, developed from the presumption or fiction that a man had promised to pay what he ought, it was extended in time to a great variety of cases where there was in fact no contract at all.

The new system gave no new force to gratuitous promises. For it was assumed, as the foundation of the jurisdiction, that the plaintiff had been induced by the defendant’sConsideration.undertaking, and with the defendant’s consent, to alter his position for the worse in some way. He had paid or bound himself to pay money, he had parted with goods, he had spent time in labour, or he had foregone some profit or legal right. If he had not committed himself to anything on the strength of the defendant’s promise, he had suffered no damage and had no cause of action. Disappointment of expectations is unpleasant, but it is not of itselfdamnumin a legal sense. To sum up the effect of this in modern language, the plaintiff must have given value of some kind, more or less, for the defendant’s undertaking. This something given by the promisee and accepted by the promisor in return for his undertaking is what we now call theconsiderationfor the promise. In cases where debt would also lie, it coincides with the old requirement of value received (quid pro quo) as a condition of the action of debt being available. But the conception is far wider, for the consideration for a promise need not be anything capable of delivery or possession. It may be money or goods; but it may also be an act or series of acts; further (and this is of the first importance for our modern law), it may itself be a promise to pay money or deliver goods, or to do work, or otherwise to act or not to act in some specified way. Again, it need not be anything which is obviously for the promisor’s benefit. His acceptance shows that he set some value on it; but in truth the promisee’s burden, and not the promisor’s benefit, is material. The last refinement of holding that, when mutual promises are exchanged between parties, each promise is a consideration for the other and makes it binding, was conclusively accepted only in the 17th century. The result was that promises of mere bounty could no more be enforced than before, but any kind of lawful bargain could; and there is no reason to doubt that this was in substance what most men wanted. Ancient popular usage and feeling show little more encouragement than ancient law itself to merely gratuitous alienation or obligations. Also (subject, till quite modern times, to the general rule of common-law procedure that parties could not be their own witnesses, and subject to various modern statutory requirements in various classes of cases) no particular kind of proof was necessary. The necessity of consideration for the validity of simple contracts was unfortunately confused by commentators, almost from the beginning of its history, with the perfectly different rules of the Roman law aboutnudum pactum, which very few English lawyers took the pains to understand. Hasty comparison of misunderstood Roman law, sometimes in its civil and sometimes in its ecclesiastical form, is answerable for a large proportion of the worst faults in old-fashioned text-books. Doubtless many canonists, probably some common lawyers, and possibly some of the judges of the Renaissance time, supposed thatex nudo pacio non oritur actiowas in some way a proposition of universal reason; but it is a long way from this to concluding that the Roman law had any substantial influence on the English.

The doctrine of consideration is in fact peculiar to those jurisdictions where the common law of England is in force, or is the foundation of the received law, or, as in South Africa, has made large encroachments upon it in practice. Substantially similar results are obtained in other modern systems by professing to enforce all deliberate promises, but imposing stricter conditions of proof where the promise is gratuitous.

As obligations embodied in the solemn form of a deed were thereby made enforceable before the doctrine of consideration was known, so they still remain. When a man hasDeeds.by deed declared himself bound, there is no need to look for any bargain, or even to ask whether the other party has assented. This rugged fragment of ancient law remains embedded in our elaborate modern structure. Nevertheless gratuitous promises, even by deed, get only their strict and bare rights. There may be an action upon them, but the powerful remedy of specific performance—often the only one worth having—is denied them. For this is derived from the extraordinary jurisdiction of the chancellor, and the equity administered by the chancellor was not for plaintiffs who could not show substantial merit as well as legal claims. The singular position of promises made by deed is best left out of account in considering the general doctrine of the formation of contracts; and as to interpretation there is no difference. In what follows, therefore, it will be needless, as a rule, to distinguish between “parol” or “simple” contracts, that is, contracts not made by deed, and obligations undertaken by deed.

From the conception of a promise being valid only when given in return for something accepted in consideration of the promise, it follows that the giving of the promisePromise and offer.and of the consideration must be simultaneous. Words of promise uttered before there is a consideration for them can be no more than an offer; and, on the other hand, the obligation declared in words, or inferred from acts and conduct, on the acceptance of a consideration, is fixed at that time, and cannot be varied by subsequent declaration, though such declarations may be material as admissions. It was a long while, however, before this consequence was clearly perceived. In the 18th century it was attempted, and for a time with considerable success, to extend the range of enforceable promises without regard to what the principles of the law would bear, in order to satisfy a sense of natural justice. This movement was checked only within living memory, and traces of it remain in certain apparently anomalous rules which are indeed of little practical importance, but which private writers, at any rate, cannot safely treat as obsolete. However, the question of “past consideration” is too minute and technical to be pursued here. The general result is that a binding contract is regularly constituted by the acceptance of an offer, and at the moment when it is accepted; and, however complicated the transaction may be, there must always, in the theory of English law, be such amoment in every case where a contract is formed. It also follows that an offer before acceptance creates no duty of any kind (“A revocable promise is unknown to our law”—Anson); which is by no means necessarily the case in systems where the English rule of consideration is unknown. The question what amounts to final acceptance of an offer is, on the other hand, a question ultimately depending on common sense, and must be treated on similar lines in all civilized countries where the business of life is carried on in a generally similar way. The rules that an offer is understood to be made only for a reasonable time, according to the nature of the case, and lapses if not accepted in due time; that an expressed revocation of an offer can take effect only if communicated to the other party before he has accepted; that acceptance of an offer must be according to its terms, and a conditional or qualified acceptance is only a new proposal, and the like, may be regarded as standing on general convenience as much as on any technical ground.

Great difficulties have arisen, and in other systems as well as in the English, as to the completion of contracts between persons at a distance. There must be some rule, andCorrespondence.yet any rule that can be framed must seem arbitrary in some cases. On the whole the modern doctrine is to some such effect as the following:—

The proposer of a contract can prescribe or authorize any mode, or at least any reasonable mode, of acceptance, and if he specifies none he is deemed to authorize the use of any reasonable mode in common use, and especially the post. Acceptance in words is not always required; an offer may be well accepted by an act clearly referable to the proposed agreement, and constituting the whole or part of the performance asked for—say the despatch of goods in answer to an order by post, or the doing of work bespoken; and it seems that in such cases further communication—unless expressly requested—is not necessary as matter of law, however prudent and desirable it may be. Where a promise and not an act is sought (as where a tradesman writes a letter offering goods for sale on credit), it must be communicated; in the absence of special direction letter post or telegraph may be used; and, further, the acceptor having done his part when his answer is committed to the post. English courts now hold (after much discussion and doubt) that any delay or miscarriage in course of post is at the proposer’s risk, so that a man may be bound by an acceptance he never received. It is generally thought—though there is no English decision—that, in conformity with this last rule, a revocation by telegraph of an acceptance already posted would be inoperative. Much more elaborate rules are laid down in some continental codes. It seems doubtful whether their complication achieves any gain of substantial justice worth the price. At first sight it looks easy to solve some of the difficulties by admitting an interval during which one party is bound and the other not. But, apart from the risk of starting fresh problems as hard as the old ones, English principles, as above said, require a contract to be concluded between the parties at one point of time, and any exception to this would have to be justified by very strong grounds of expediency. We have already assumed, but it should be specifically stated, that neither offers nor acceptances are confined to communications made in spoken or written words. Acts or signs may and constantly do signify proposal and assent. One does not in terms request a ferryman to put one across the river. Stepping into the boat is an offer to pay the usual fare for being ferried over, and the ferryman accepts it by putting off. This is a very simple case, but the principle is the same in all cases. Acts fitted to convey to a reasonable man the proposal of an agreement, or the acceptance of a proposal he has made, are as good in law as equivalent express words. The term “implied contract” is current in this connexion, but it is unfortunately ambiguous. It sometimes means a contract concluded by acts, not words, of one or both parties, but still a real agreement; sometimes an obligation imposed by law where there is not any agreement in fact, for which the name “quasi-contract” is more appropriate and now usual.

The obligation of contract is an obligation created and determined by the will of the parties. Herein is the characteristic difference of contract from all other branches of law.Interpretation.The business of the law, therefore, is to give effect so far as possible to the intention of the parties, and all the rules for interpreting contracts go back to this fundamental principle and are controlled by it. Every one knows that its application is not always obvious. Parties often express themselves obscurely; still oftener they leave large parts of their intention unexpressed, or (which for the law is the same thing) have not formed any intention at all as to what is to be done in certain events. But even where the law has to fill up gaps by judicial conjecture, the guiding principle still is, or ought to be, the consideration of what either party has given the other reasonable cause to expect of him. The court aims not at imposing terms on the parties, but at fixing the terms left blank as the parties would or reasonably might have fixed them if all the possibilities had been clearly before their minds. For this purpose resort must be had to various tests: the court may look to the analogy of what the parties have expressly provided in case of other specified events, to the constant or general usage of persons engaged in like business, and, at need, ultimately to the court’s own sense of what is just and expedient. All auxiliary rules of this kind are subject to the actual will of the parties, and are applied only for want of sufficient declaration of it by the parties themselves. A rule which can take effect against the judicially known will of the parties is not a rule of construction or interpretation, but a positive rule of law. However artificial some rules of construction may seem, this test will always hold. In modern times the courts have avoided laying down new rules of construction, preferring to keep a free hand and deal with each case on its merits as a whole. It should be observed that the fulfilment of a contract may create a relation between the parties which, once established, is governed by fixed rules of law not variable by the preceding agreement. Marriage is the most conspicuous example of this, and perhaps the only complete one in our modern law.

There are certain rules of evidence which to some extent guide or restrain interpretation. In particular, oral testimony is not allowed to vary the terms of an agreementEvidence.reduced to writing. This is really in aid of the parties’ deliberate intention, for the object of reducing terms to writing is to make them certain. There are apparent exceptions to the rule, of which the most conspicuous is the admission of evidence to show that words were used in a special meaning current in the place or trade in question. But they are reducible, it will be found, to applications (perhaps over-subtle in some cases) of the still more general principles that, before giving legal force to a document, we must know that it is really what it purports to be, and that when we do give effect to it according to its terms we must be sure of what its terms really say. The rules of evidence here spoken of are modern, and have nothing to do with the archaic rule already mentioned as to the effect of a deed.

Every contracting party is bound to perform his promise according to its terms, and in case of any doubt in the sense in which the other party would reasonably understandPerformance.the promise. Where the performance on one or both sides extends over an appreciable time, continuously or by instalments, questions may arise as to the right of either party to refuse or suspend further performance on the ground of some default on the other side. Attempts to lay down hard and fast rules on such questions are now discouraged, the aim of the courts being to give effect to the true substance and intent of the contract in every case. Nor will the court hold one part of the terms deliberately agreed to more or less material than another in modern business dealings. “In the contracts of merchants time is of the essence,” as the Supreme Court of the United States has said in our own day. Certain ancient rules restraining the apparent literal effect of common provisions in mortgages and other instruments were in truth controlling rules of policy. New rules of this kind can be made only by legislation. Whether the parties did or did not in fact intend the obligation of a contract to be subject to unexpressedconditions is, however, a possible and not uncommon question of interpretation. One class of cases giving rise to such questions is that in which performance becomes impossible by some external cause not due to the promisor’s own fault; a similar but not identical one is that in which the agreement could be literally performed, and yet the performance would not give the promisor the substance of what he bargained for; as happened in the “coronation cases” arising out of the postponement of the king’s coronation in 1902. As to promises obviously absurd or impossible from the first, they are unenforceable only on the ground that the parties cannot have seriously meant to create a liability. For precisely the same reason, supported by the general usage and understanding of mankind, common social engagements, though they often fulfil all other requisites of a contract, have never been treated as binding in law.

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