Restatement Common Law PDF

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1-1-1929
The Restatement of the Common Law by the

American Law Institute
Arthur Corbin
Yale Law School
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THE RESTATEMENT
RESTATEMENT OF THE COMION
CO:aThION LAW
LAW BY THE
THE
MIERICAN
AMERICAN LAW INSTITUTE
INSTITUTE
T HE organization of the American Law Law Institute grew
grew out ofof
T discussions at the annual meetings of the Association
American Law Schools. These discussions
Association of
discussions began more than
of
than ten
ten
ago. The teachers of law composing that .Association
years ago. Association had
become increasingly impressed with the growing complexity and and
uncertainty of the common law. The thousands of new decisions decisions
annually added to our already bursting storehouses
annually storehouses of learning
were making it continually
were continually more difficult
difficult to understand,
understand, to state,
teach the common law. To the same extent and for the
and to teach
same reasons the work of the practicing
same practicing lawyer in'advising
in advising clients
and the work of the judges in deciding cases were becoming becoming in-
creasingly
creasingly difficult. Necessarily, this situation was reflected in the
published opinions of the judges. Uncertainty of mind produced produced
confused reasoning and actual conflict in decision. Legal termin-
confused
ology, always shifty and inexact as in the case of all the other
ology, other
branches of socialsocial science, became more and more inefficient
inefficient in
unsatisfactory to every-
obtaining clarity of expression and more unsatisfactory
body concerned, as the strain upon it
body it was increased
increased by the rapidity
and complexity of modern life.11
and
Largely for
Largely for the foregoing reasons, doubts beganbegan to be expressed,
expressed,
both byby the public at large
large and by thoughtful
thoughtful members of the legal legal
profession, that our judicial organization
organization and our system of law
were rendering
were rendering adequate
adequate service
service to the community. In In law school
law school
faculties there
faculties there was much agitation for the study of jurisprudence
jurisprudence
in all
in all its phases, particularly as regards legal analysis and termin-
ology. It
ology. It was believed that there is a science of jurisprudence
jurisprudence and
that law
that law schools
schools should be places for its development, and not mere-
ly professional
ly professional training
training schools.
schools. The
The organization of a national
school of jurisprudence
school jurisprudence was proposed a number of times; and one
ill-starred attempt,
ill-starred attempt, wholly
wholly outside
outside ofof the
the Law
Law School Association,
Association,
was made to organize an academy for
was made to organize an academy for the creation the creation of a modern
modern
Corpus Juris.
Juris.
1 That uncertainty may also edst under a codified system of law,
11 That uneertainty may also a-nst under a eodified system of law, see
see Wurzel,
'Wurzel,
99 Modern
Modern Legal
Legal Phil.
Phil. Series,
Series, 304,
304, who
who says:
says: "If
"If the
the faet
fact of uncertainty
uneertainty is
to
to bebe seen
seen in
in all
all its
its nakedness, one has but to observe the guessing process
nakedness, one that
proeess that
goes on
goes on regarding
regarding thethe deeisions
decisions of
of our
our courts of last
eourts of instance."
last instanee."
19
19
HeinOnline -- 15 Iowa L. Rev. 19 1929-1930

20 lOWA
IOWA LAW
LAW REVIEW
BEVIEW
At a meeting of the Association held in December, 1921, 1921, a resolu-

tion was adopted directing the appointment of a committee, committee, with
power to associate others with themselves, "for "for the purpose of of
jointly creating a permanent
permanent organization for improvement
improvement of the
law.
law."" The committee thereafter appointed
committee thereafter appointed brought together
together a
group of about forty men, meetings
meetings being held in May and and June,
1922. The work of this group resulted in the organizationorganization of the
American Law Institute at a large meeting in Washington Washington held in
1923.22
February, 1923.
At the meeting of the Association
Association of American
American Law Schools that
authorized the formation of "a permanent organization for im-
"a permanent
provement of the law," an address in support of the resolution resolution
was made by Judge Benjamin N. N. Cardozo, of New York. In that
In that
address
address he stated the benefits to be expected
stated expected from such an organ- organ-
ization as follows:
follows:
"You have
"You have provided
provided here
here for
for the
the bringing
bringing together
together of all thethe
forces that are at work in the making of the law-the Universities,
the Bench, and the Bar: Bar. That, it it seems to me, is a fine thing, a
thing so fine and so useful that of itself it it justifies
justifies this project. I
hear around me on all sides an insistent
insistent demand thatthat the work of of
the universities shall be supplemented
supplemented by the work of the men who
deal with the law in action, the men in the thick of the the fight, the
the
lawyers and the judges. There There is a distrust of mere theory. The
last speaker showed that there was the same distrust in Canada.
At all events, I find it it here;
here; and the result has been to deny deny toto
scholarship its just meed of recognition
recognition and respect. I feel at at
liberty to sp'eak
speak with candor
candor about this because I do not share share the
distrust myself; and so, in speaking
speaking as I do, I am playing, not not the
critic, but merely the observer
observer and reporter. Now, in this proposedproposed
Academy you are bringing all these agencies
Academy agencies together
together and
and inviting
them to act in unison. That, it it seems to me, in itself, is a great andand
useful work, a work that will co-ordinate and unify many
useful many forces
that are acting now in isolation and antagonism. We are to substi-
that
tute for the attitude of mind, the temper, that spends itself itself in hos-
distrust, the attitude and temper of mutual
tility and distrust, mutual helpfulness,
helpfulness,
of willing
of willing co-operation,
co-operation, a fusion of diverse types and and capacities and
and
attainments. Of course, in such a process there there are
are losses as well
well
as gains. Sometimes one has to scrap the things that one would would
like to
like to keep.
keep. One's
One's pet
pet hobbies
hobbies are sometimes derided, and one's one's
dearest
dearest formulas rejected. One who sits in an Appellate Appellate Court,
convincing or placating
with the necessity of convincing placating six
sh: minds
minds or more,
becomes finally
becomes finally more or less inured to these scenes of carnagecarnage and
mutilation. But in exchange one
mutilation. one gains other things that mitigate
221
1 Am. L.
Am. Inst. PrOll.,
L. rust. Proc., Pt. 2.
Pt. 2.

:RESTATEMENT
BEBSTATEMENT OF THE COMMON LAW
COMMON LAW 21
the sacrifice. One gains a fusion of points of view; a balance, a

moderation, and above all, aa prestige and an authority that could could
not otherwise
otherwise be won.
"Do
"Do not underrate, I beg you, the power that such an Academy
exert with the passage of the years. Those
will exert Those who begin by scof-
fing will
fing will end by paying the tribute of adherence adherence and applause.
applause.
Little by little,
little, if
if such an Academy arises, it it will establish a back-
back-
ground, an atmosphere more pervasive than you you think. And it
will be true,
true, perhaps, of this atmosphere, as it it is of the air wewe
breathe, that many who are not conscious
conscious '3
of its presence
presence will none
the less inhale it and gain its vital force."
its vital force. "3
Elihu Root was the chairman of the large large committee that organ-
ized the Institute and outlined the work of restatementrestatement of the law
that is now in process. In In presenting the reportreport of this committee
to the large national meeting Washington that organized
meeting at Washington organized the
Institute in 1923, Mr. R()otRoot gave reasons for attempting
attempting a restate-
ment of the substantive common law. He commented
ment commented on the "in- "in-
creasing complexity confusion of the substantive
complexity and confusion substantive law,"
law," just as
as
the members
the members of the Association
Association of American Law Schools had for for
some years been commenting. As to this he said: said:
"It
"It was apparent that the confusion, the uncertainty, was grow-
ing worse from year to year. It
ing It was apparent
apparent that the vast multi-
tude of decisions which our practitioners
practitioners are obliged to consult was
reaching a magnitude which made
reaching made it it impossible in ordinary
ordinary prac-
tice to consult them. It
tice It was apparent
apparent that whatever authority
authorit3r
might be found for one view of the law upon upon any topic, other
other
authorities could be found for a different
different view upon the same topic.
The great number of books, the enormous
The enormous amount of litigation, the
struggles of
struggles of the courts to avoid too strict an application
application of the rule
stare decisis,
of stare decisis, the fact that the law had become so vast and com-
plicated that the conditions of ordinary practice and ordinary ordinary
judicial duty made it it impossible
impossible to make adequate
adequate examinations-
examinations-
all these
all these had tended to create a situation where
where the law was becom-
becom-
guesswork." '44
ing guesswork.'
333Ass'n
Ass 'n of Am. Law Schools,
of Schools, Proc., December, 1921.
1921.
4 1 Am.
41 Am. L.
L. Inst.
Inst. Proc., 48. In In an article making an argument
argument against
against codi-
fication, ".A.
fication, "A Century
Century of
of Judge-Made
Judge-Made Law,"
Law," 7 Col. L.L. Rev. 453,
453, 457 (1907),
457 (1907),
Win. B.
Wm. B. Hornblower said:
said: "This
"This vast mass
mass of decisions is appalling and
one is inclined to welcome any scheme which promises relief to the bewildered
one bewildered
practitioner. '",I
1894 John F.
In 1894 F. Dillon wrote: "This
"This colossal body of case-law
case-law is
is wholly
wholly
unorganized...., The
unorganized. The infinite
infinite details of this mountainous mass in in its exist-
ing shape-bear
ing shape--bear me me witness,
witness, ye
ye who
who hear
hear me-no
me-no industry
industry can
can master and no
and no
memory retain.
memory retain..." As we
.As we attempt
attempt to survey it
it we are reminded ofof the dread
and illimitable
illimitable region described
described by Milton where "Chaos umpire
where "Chaos umpire sits, .And
And

22 IOWA LAW
IOWA LAW :REVIEW
BEVIEW
Mr. Root further

Mr. further proceeded
proceeded to
to express
express his views
views as
as to
to the
the char-
char-
acter of
acter of the
the restatement
restatement and the
the effect that
that it
it might
might be
be expected to
to
have inin eliminating uncertainty
uncertainty and
and confusion.
confusion. These
These were, in in
as follows:
part, as
"Now, if
"Now, if you
you can
can have
have the
the law
law systematically, scientifically stat- stat-
ed, the principles stated stated by
by competent men, giving their discussions
of the
the theories upon upon which their statements
statements are are based,
based, giving
giving a
presentation and discussion of all the judicial decisions upon which
presentation which
statements are
their statements are based, andand if
if such
such a statement can be be revised
revised
and criticised
criticised and and tested by by aa competent
competent group group ofof lawyers
lawyers of of
eminence, and when when their work is done if if their
their conclusions
conclusions can be be
submitted to the bar that we have here, if that can be be done when
when
the work is completed, we will have a statement of the common law
of America which will be the P1-i'l1UL prima facie
facie basis on which judicial
action will rest; and any lawyer, lawyer, whose interest
interest in litigation re- re-
quires him to say that a different view of the the law shall be taken,
taken,
will have upon his shoulders the burden to overturn the statement. statement.
"Instead of going back through ten thousand cases it will have
"Instead
been done for him; there will be not a conclusive presumption but
aa practical primaprima facie statement upon which, unless it is over-
facie statement
turned, judgment
judgment may rest. rest.
"If such a thing is done it
"If it will tend to assert itself and to con-
firm itself and to gather authority as time goes on. Of course it
cannot be final, for times are continuallycontinually changing and new condi-
tions
tions arise, and there will have to be revision revision after
after revision;
revision; butbut
we will have dealt with the past and will have gotten gotten this old man
of the sea off our shoulders in a great measure." measure."
More
:L\f.ore than sL'tsix years have now gone by since the Institute was
organized. To
organized. To what
what degree is it realizing the hopes founders?7
hopes of its founders
Does
Does thethe work already done afford afford new ground for expecting
expecting future
accomplishment? Do the already
accomplishment? already published fragments
fragments of a general
restatement of the common
restatement common law law give promise becoming "the
promise of becoming "the
prima
prima facie
facie basis
basis onon which
which judicial
judicial action
action will rest" and of reduc-
will rest"
ing
ing the
the existing
existing uncertainty
uncertainty and and complexity?
complexity 7
Some
Some of the benefits that
benefits that were expected
expected from the the organization
organization of of
the Institute and from its
the Institute and from its attempt attempt to restate the common
restate the common law are
certainly being
certainly being attained. In In the quotation
quotation printed
printed above,
above, Judge
Cardozo
Cardozo said that the Institute
Institute would
would bring together"
together "all all the forces
that
that areare at work
work in in the making
making of of the law-the
law-the Universities, the
Bench,
Bench, and and thethe Bar."
Bar." The The experience
experience of of six
six years hashas already
already
shown
shown that that this
this is
is true inin some degree,
degree, although
although the the three
three forces
forces
by
by decision
decision more
more embroils
embroils the fray
fray By
By which
which he
he reigns."
reigns." 11 Essays
Essays in
in Anglo-
American
American Legal Hist.
Rist. 512.
512.

RESTATEMENT OF THE COMMON LAW
:RESTATEMENT LAW 23
mentioned by the the learned judge are far from from being all the forces
that are influential in law making. While While the work of drafting
the Restatement is is very largely the work of university professors,
the drafts that they produce are constantly constantly subjected
subjected to the crit-
icism of members of the the Bench and Bar. This occurs to some ex-
the committees that prepare the drafts, and to aa further
tent in thecomnrittees further
extent in the Council of the Institute and in the annual meetings
at Washington. There is no doubt that as time goes on the work
of the Institute will afford increasing
increasing opportunity for this co-
operation of
operation the three forces named. Within the committees active-
ly engaged in drafting the Restatements there is a most unusual
co-operation and mutual education. Some of the
opportunity for co-operation the
committees, largely composed as they are of men from different different
law schools, have already succeeded succeeded in abandoning "temper
abandoning the "temper
that spends itself in hostility and distrust" and in sub&tituting substituting
"temper of mutual helpfulness,
the "temper helpfulness, of willing co-operation, a fusion
of diverse attainments." Law professors
diverse types and capacities and attainments." professors
here get some of the education that Judge Cardozo tells us is the
constant lot of the appellate
appellate judges. "Pet "Pet hobbies"
hobbies" and "dearest
"dearest
formulas"
formulas" that have been rammed rammed down the throats of helpless
students in a class room must now compete compete for their lives and shed
their sacred blood amid amid""scenes
scenes of carnage and mutilation."
mutilation. " What-
ever
ever may be the merits merits or demerits of the Restatements thus far far
prepared, the making of them has been a necessary process process in the
creation of better
better things; it is doing much to "establish
"establish a back-
ground"
ground" and to create an "atmosphere" "atmosphere" that may enable our our
successors to climb the heights we
successors we do not reach.
Thus far,
far, the
the committees
committees of the Institute
Institute have prepared
prepared Re-
statements of large parts parts of the fields of Contracts, Conflict of
of
Laws, Agency, and Torts; Torts; and much work has been done in Proper-
ty and Trusts. In In addition, a CodeCode of Criminal Procedure, con-
sisting of 296 sections
sections with extended
extended commentary,
commentary, has been sub- sub-
mitted to the Institute. The present writer writer cannot
cannot pass
pass judgment
judgment
on the merits
merits of these various
various documents: first, because
because he would
would
not
not pose as a competent
competent expert
expert in more
more than one of the fields men- men-
tioned;
tioned; and secondly,
secondly, because
because in in the one
one field in which he mightmight
regard
regard himself
himself as as competent,
competent, he assisted
assisted in the preparation
preparation of the
documents
documents to be appraised. The Restatements are
The Restatements are in
in large part
part still
in
in the
the course
course of of revision; and any any criticism
criticism or
or suggestion
suggestion for bet-
bet-
terment
terment ought to be sent
sent to the Reporters and
Reporters and Advisers who
who are
doing the revising. There is no question question that the work
work of the Insti-

24 lOWA
IOWA LAW
LAW :REVIEW
BEVIEW
tute is such
such a great public undertaking that every person having
special knowledge in any :field
field of law is in duty bound to make a
careful study of the documents that are being prepared in his his :field
field
and to send to the Institute all the criticisms
criticisms and suggestions
suggestions that
that
he thinks to be of importance. There are certaincertain parts of the Re-Re-
statements, however, that may now properly
properly be made the subject
subject
of published criticism and controversy
controversy;j these parts have
have been
been pub-
lished in the form of Official Drafts without any restriction
restriction as toto
citation as authority or quotation for purposes of criticism
criticism and fmn-
im-
provement 51i
provement.
It
It is
is proper, however, to consider
consider several questions in in the light
light
of sL>:
six years of experience
experience in the work of restatement. The :first of
first of
these questions is: Do the United States of AmericaAmerica have a com-
mon law that can be restated
restated?7 The answer
answer to this requires a brief
brief
statement as to what is meant by "law.""law." If by "law"
If "law" is meant
meant
an unchangeable rule expressed
expressed in words and and handed down by by
divinity or by some great human law-giver of the past, itit is clear clear
that we have no such law or system
that system of law. Not only do the United
United
States have no such law or system neither
system;j neither does the state of Iowa
Iowa
nor the state of New York have such a law or system. In In a com-
paratively recent dissenting opinion, ~fr.Mr. Justice
Justice Holmes
Holmes has sug-
gested that there is no "august
gested "august corpus,"
corpus," no "transcendental
"transcendental bodybody
law,"" no system of "common
of law, "common law" outside of a particular
particular state;
and
and he thinks it "an
"an unconstitutional assumption
assumption of powers"
powers" for
a federal court to attempt to declare and applyapply within
within any state a
rule of supposed common law that is repudiated
repudiated by the courts
courts ofof
that state.666
6Ii A
Ii A criticism, already published
published by Professor Whittier,
Mhittier, will be considered
considered
further on in
further in this article.
6G"Books
6 "Books written
written about any branch of of the co=on
common law treat it as a unit,
treat it
cite cases from this Court, from the Circuit Courts of Appeal, from the State
cite
Courts, from
Courts, from England and the Colonies of England indiscriminately,
indiscriminately, andand
criticize them as right or wrong according to the writer's writer's notions of a single
single
theory. It
theory. It is
is very
very hard
hard to
to resist
resist the impression that there
the impression is one august
there is august corpus,
to understand
to understand which clearly is the only task of any Court concerned. If If there
transcendental body of law outside
were such a transcendental outside of any particular
particular State butbut
obligatory within
obligatory within it unless and until changed
changed by statute, the Courts of the
United States might be be right
right in using their
their independent
independent judgment
judgment as to whatwhat
it was.
it was. But But there
there is
is no
no such body of law. The fallacy and illusion that I
think exist
think exst consist
consist in supposing that there is this outside
outside thing
thing to be found.
Law is
Law is aa word
word used
used with
with different
different meanings, but law in the sense in
meanings, but in which
courts speak
courts speak ofof it
it today
today does
does not
not exist
exist without
with~ut some
some definite
definite authority behind

:RESTATEMENT
.RESTATEMENT OF TIlE
TRF COMMON
COMMON LAW
LAW 25
The present writer is quite in agreement

agreement with :Mr.
Mr. Justice Holmes
if he means an august corpus of universal and unchangeable
unchangeable rules;
rules;
but hehe is no more able to find such an "august corpus" within the
"august corpus"
confines of the state of Iowa than in all of the United States States put
put
together;
together; and he believes that the federal courts are just as fully
authorized to declare
declare and build up common
common law in the cases proper-
ly arising before them, as are the courts of a single state.71 The
result may occasionally be added conflict; but it is nothing new in
either kind
kind or quality. A stated rule used by either court court as a
basis ofof decision must fight for its life, whether the rule is enunci-
ated by aa state court or by the United States Supreme Court.
The common law of the state of Iowa, the law that has been ap-
The
plied and will be applied to the citizenscitizens and the transactions of of
that
that state, is determined by the great multitude of adjudications
in all the courts that have jurisdiction
in jurisdiction of such citizens and trans-
actions under our complicated governmental
governmental organization. In- In-
cluded therein
cluded therein are the federal courts of the United States, declar-
declar-
ing and creating the common law of Iowa by the very same con- con-
authorization as the Iowa supreme court itself. When
sent and authorization When
the United States Supreme Court declares and applies the common common
law with respect to men and events within the confines of Iowa,
"definite authority behind it"
there is "definite it" and there is no "uncon-
"uncon-
stitutional assumption
stitutional assumption of power."
power." Each court will no doubt pay
some meed of respect to the decisions and restatements
some restatements of the other,
"scenes of carnage
occasionally interspersing "scenes carnage and mutilation;"
and together they will continue to lay lay the foundation for all the
new restatements
restatements ofof the future.
future.
With respect to what is called the common law, the English and and
American courts did not begin with a great great body of already crystal-
They did not begin even with a set of extremely broad
lized rules. They
principles; for if there is any difference at all between
between a principle
and a rule of law, it lies only in arbitrarily
arbitrarily adopted definitions,
making the one a broader generalization than the other. Instead,
broader generalization
the common law as a system is the result of centuries centuries of growth.
it. The
it. The co=on
common law so far as it it is enforeed
enforced in a State, whether
whether called com-
com·
mon law or or not, is not
not the co=on
common law generally
generally but
but the
the law of
of that State
State
authority of that
existing by the authority that State without regard to what itit may have
been in
been in England
England or
or anywhere
anywhere else."
else." Black
Black && White
White Taxi
Taxi && T.
T. Co.
Co. v. Brown
v. Brown
& Yellow
& Yellow Ta.-n
Taxi &
& T.
T. Co.,
Co., 276
276 U.
U. S. 518, 48 Sup.
S. 518,48 Sup. Ct.
Ct. 404
404 (1928).
(1928).
117See "The Common
See "The Common Law Law and Our Federal
and Our Federal .Jurisprudence"
Jurisprudence" by Chief
by Chief
Justice von
.Justice von Moschzisker
Moschzisker in in 74
74 Pa.
Pa. Law
Law Rev.
Rev. 109.
109.

26 IOW.t1. LAW REVIEW
IOW A LAW BEVIEW
It
It has
has been constructed by hundreds of thousands
thousands of decisions in in
actual
actual cases. These decisions show a greater or less degree of uni-
formityand
formity and consistency. Precedents are in fact followed. History History
repeats
repeats itself in judicial and administrative
administrative conduct, as well as in
political events. The extent of this uniformity
uniformity and consistency
consistency is
such as to make prediction possible, and thus to enable the
such as the mem-
bers of the legal profession to earn their living
living by giving
giving advice in in
advance and preventing litigation, as well as by acting as advo-
cates after
cates after disputes have arisen and litigation is begun. The com-
mon law consists of this uniformity and consistency in judicial and and
administrative
administrative conduct. Its rules and principles
principles are statements
statements in
words of of this uniformity and consistency. In In this fundamental
fundamental
aspect
aspect the common
common law is no different from the laws that we think
think
we have discovered
discovered in physics or in chemistry. A law is a state-
ment of uniformity in the past sequence of events, based based upon the
recorded observation of those events, by the help of which we we be-
be-
lieve that we are able to predict the future course of events. This
is true, whether the uniformities that have been been observed are uni-
formities in judicial
formities judicial action or uniformities in the conduct of atoms atoms
or planets or suns.
Human observation of events, however, is often inaccurate inaccurate and
is always incomplete. The stated laws of physics and chemistry
is chemistry
have continually had to be restated in the light of wider wider observa-
observa-
tion and more nearly correct analysis. In In the same way and for
exactly the same reasons, we have
exactly have had a continuous series series of re-
statements of the common law, law, from the very earliest times of of
which we have a record down to the present. The work of the
American Law Institute is merely the latest of these restatements;
restatements;
but instead of its being the restatement
restatement of a single jurist or legal
scholar working alone in his closet, it prepared by a large
it is being prepared
and diversified group of men working through through special committees
committees
of jurists and scholars. The efforts of these committees are
of are not re-
stricted to the finding and stating of uniformities
uniformities of judicial action
judicial action
within a single
single state. They are attempting to state the uniformi-
ties that may be found in the judicial action of many courts courts in all
of these United States.
In this attempt they must assuredly find thousands
thousands of instances
instances
in which there is no perfect uniformity judicial action. They
uniformity of judicial They
find variation from the past and conflict in the present. In In some
instances the conflict may be so great as to make it it impossible for for
the Institute to assert the existence of any uniformity-to state a

RESTATEMENT OF THE COMMON L.AW
RESTATEMENT OF LAW 27
rule of law. In
rule In other
other cases
cases of
of conflict,
conflict, the Institute
Institute maymay be
be able to
lay down
lay down a rule
rule asas representing
representing thethe prevailing
prevailing "weight
"weight of author-
ity." In
ity." In rare cases
cases the
the Institute,
Institute, with
with a greater
greater or or less degree
degree ofof
wisdom, is is adopting
adopting a minority rule, hoping direct the
hoping to direct the stream ofof
decisions in
decisions manner by using
in this manner using its influence
influence and authority in
and authority in
the judicial
the judicial community.
community. In In this, the Institute is doing no no more
every jurist of the
than every the past has individually
individually done done when
when he states
states
and approves one of of two oror more
more competing
competing rules and and recommends
recommends
its use to the community.
In spite of a high
In degree of
high degree following of
of uniformity, of the following of pre-
cedents, of repetition of the past, there has has always
always been
been also the
element of variation
element variation from the past. This variation variation is atat times
ignorant and unintentional. At other times it
ignorant the result of aa
it is the
conscious choice
conscious choice by Whatever the
by the judges. Whatever cause and
the cause and however
however
successful or unsuccessful
successful variation may be in
particular variation
unsuccessful a particular in satis-
human needs and promoting
fying human happiness and survival, it
promoting happiness it must
must
be taken into account in any restatement
be restatement of the the law. It It is this
variation that has has caused the long
long series
series of restatements
restatements in the pastpast
and that must
must cause
cause a 'continued restatements in the
series of new restatements
continued series
future. The restatement by the Institute, if well done, may tend
The restatement
amount of ignorant and unintentional variation;
reduce the amount
to reduce variation; itit
may cannot and should not prevent, that conscious
may reduce, but itit cannot conscious
variation that is based
variation based upon new experience, changing conditions,
and new customs and desires.
Assuming that there is now need for a restatement
Assuming restatement of the com-
mon law in the form of a system of new generalizationsgeneralizations from the
welter of individual decisions, is the Institute
welter Institute sufficiently taking
into account the recent variations already evidenced in court de-
already evidenced
cisions and also the social mores and business practices that are
business practices
already ripe for new variations
variations that must inevitably take place7 place?
The answer to this is easy; most certainly the answer is No. Doubt-
standpoint of the less active
less, from the standpoint members of the Institute,
active members
the production appears to be making very slow progress; but from
standpoint of an active participant, it
the standpoint it seems to be going alto-
gether too fast. No Reporter or Adviser is able to spend more than
a fraction of his time and strength on the work; and while each
section is reasonably sure of several serious discussions and revi-
it is anything but sure of being founded upon a new and
sions, it
exhaustive
exhaustive examination
examination of the cases. There should be much more
paid assistance and aa little less pressurepressure for results. Lawyers,
teachers, and research scholars have an excellent opportunity for for

28 IOWA LAW :REVIEW
IOWA LAW REVIEW
supplementing
supplementing and amending the work of the Institute. With re-
speet
spect to some one or more sections, they can collect the court court de-
cisions and make a comparative
comparative study of them much more more exhaust-
exhaust-
ively than is possible to the force now available. On the basis basis of
of
this study,
study, new and more accurate
accurate generalizations
generalizations can be drafted.
Thus gradually the hope of 1\11'. Air. Root may be realized that the the
Restatement
Restatement will deserve to be accepted accepted as a sound prima facie, facie
basis for judicial action.
So far as new social mores and business practicespractices are concerned,
concerned,
there is no research machinery for their discovery. The present present
writer believes, however, that if if there were such machinery, it
influential in affecting the Restatement
would be iniluential Restatement only in very lim-
ited fields. Before this great community for which the RestatementRestatement
is being made would be willing to adopt it, it, its doctrines
doctrines must have
received approval and application in some litigated case. Ardent
reformers and confident
reformers confident legislators often believe that they are wise
enough to generalize for the future; but experienceexperience indicates
indicates that
that
the best way to turn mores into law is to do itit piecemeal piecemeal by the the
"molecular
,"molecular motion" of
'molecular motion" of the courts.
This
This is no argument
argument against research into the economic
economic and social
social
life around us. Every university law school school is, no doubt, already
already
engaged in it
engaged it on a greater
greater or smaller scale; and no law school school
should be allowed to prepare men for the Bar without being fitted
to engage in it and actually doing so. One of the great
to great functions
of
of the Institute in
in the future will be to provide machinery
macbjnery for this
research
research and to make its wheels go round. Those who believe
believe that
that
certain
certain sections of the Restatement are ancient and out-of-date
should at once get busy and prove it publicly.8
rules, should publicly." Such work work
forms the basis of the new and constant revisions that are to come.
But we should remember that new social mores and business prac-
tices are in general forced upon the attentionattention of our courts
courts about
"prevailing."
as soon as they can be described as "prevailing." It is no new or
It or
surprising dogma
surprising dogma that custom makes law. As As fast as custom can
88s Concerning the proposed Code of Criminal Procedure, Judge .Judge Harry Olson,
of Chicago, speaking at a meeting of the Association
of Association of American
American Law Schools
Schools
in December, 1928, said: "I
in "I occasionally
occasionally sit in
in with a committee in in New
York of
York of the
the American
American Law
Law Institute who are revising the Criminal Code for
the
the United States; and we areare working on the authorities-what judges have
the authorities-what
said, what
said, what courts
courts have
have said-and
said-and we are collecting it it all. I do it
it with great
with great
impatience, because
impatience, because II realize that the
realize that the law
law upon
upon which
which the
the decisions
decisions of
of those
those
courts were based is is often :fifty
fifty years behind time."

RESTATEMENT
RESTATEMENT OF THE COMMON LAW
COMMON LAW 29
safely be turned into law, the courts generally do it; and the Insti-
tute will be willing to recognize
recognize it.
it. In
In general, it it is best to trust
to the recent
recent judicial decisions and to the collective wisdom of a
number
number of of selected men. While there is danger that they they may
may notnot
have the time or industry to collect all the decisions and that they
have the
may
may not carry the latest mores in their collective
collective bosoms, the danger
danger
involved in
involved in stating
stating unadjudicated
unadjudicated mores and practices
practices as existing
existing
law
law would be much greater.
Among the benefits that can already be seen slowly slowly emerging
from
from the work of the Institute is the development
development of a greater
greater cer-
terminology. If
tainty and uniformity in legal terminology. thing more
If one thing
than any
any other has been demonstrated
demonstrated by this co-operative
co-operative commun-
ity undertaking in making a restatement of the common
ity common law, it is
the fact that each jurist and scholar, however eminent
the eminent and how-
ever accustomed
accustomed to the writing of law books, is continually continually sur-
prised and frequently chagrined
chagrined by finding that his most cherished
cherished
and careful generalizations,
and generalizations, his dearest formulas, and the legal
verbiage to which he has been most religiously
religiously wedded
wedded convey no
and definite idea to the benighted minds of the judges, law-
clear and
yers, and scholars who constitute the other members members of the various
various
committees and the Council of the Institute. But the "scenes "scenes of of
carnage and and mutilation"
mutilation" in the field of language
language are nearly alwaysalways
followed by the confession of error and the forgiveness of sin., sin. ' Out
there usually emerges a form of expression that is reason-
of them there
ably intelligible to all the members
members of the restating committee.
committee.
This
This is one important
important step in our eternal
eternal struggle for a common
common
tongue. A A black letter
letter statement that is finally adopted
adopted may still
be found to be made up of variables and modes of expressions that that
may have had their origin on the tower of Babel;
may Babel; but they have
survivors in a struggle with other forms of
the merit of being the survivors of
expression that almost invariably are worse. The straining for
expression
definiteness and certainty may at times lead the Institute
definiteness Institute to de-
clare the existence of a uniformity
uniformity and of a rule of law .that ,that in
in
fact does not exist; but at least we are being spared the repetition repetition
of those noble labor-saving devices of the encyclopaedist
encyclopaedist and the
hack text-writer, such as "some "some courts hold"hold" and "probably
"probably the
better rule is.is.""
The productions of of the Institute should
should receive constant
constant criticism,
both destructive and constructive, from within the membership membership of of
the Institute and from without. There will be found bad analysis,
classification, and terminology. There
classification, There will be turgidity and com- com-

30 IOWA
IOWA LA
LAWW BEVIEV
REVIEW
plexity of
plexity style. In
of style. In places
places there will be
there will be unfilled gaps where
unfilled gaps where thethe
law should
law should have have been
been stated;
stated; andand inin other
other places
places there
there will
will be
be
efforts to
labored efforts
labored to cover
cover unimportant
unimportant details and to
details and to express
express every
every
possible limitation
possible limitation andand exception.
exception.99 There
There will be failure
will be failure toto recog-
recog-
nize the
the obsolescence
obsolescence of of old rules through
old rules through disuse
disuse by the courts
by the courts and
and
realize the
to realize the existence
existence of new
new rules
rules already
already immanent
immanent in in the
the more
more
decisions and
recent decisions
recent and in the life
life around us. The The men
men available
available maymay
not be expert or sufficiently
sufficiently expert
be sufficiently numerous; and
sufficiently numerous; and some
some that
that
are expert
are expert and available may not
available may not be
be enlisted. There are problems
enlisted. There problems
here to be
here be solved
solved and weaknesses to overcome. The
and weaknesses German Civil
The German Civil
Code is is said toto have
have required
required twenty-two
twenty-two years its completion.
years for its completion.
has received high
It has
It high encomiums
encomiums and and severe
severe criticism. As As applied
applied
by officials
by with narrow
officials with experience and
narrow experience and dull
dull minds, it may at times
it may
result in
result harmful as
in decisions as harmful as would
would have beenbeen rendered without
without
it. We
it. We may may be sure that the the Restatement
Restatement of of American
American Law will will
have imperfections
have imperfections and that develop in the
that new ones will develop the future;
and we should see to itit that that the American
American Law Law Institute
Institute is given
given
machinery
immortal life in order to have the machinery constantly constantly at hand
hand
for their correction.
A critical article, admirable in in form andand spirit, dealing with the
statement of of the mutual assent as itit appears in the Con-
the law as to mutual
tracts Restatement,
tracts Restatement, has already published by Professor
already been published Professor Whit-
tier. 100 He
tier.' He expresses
expresses adverse criticism
criticism of some of of the sections
sections onon
the topic in question. No doubt there there are other sections with which which
he is not altogether satisfied;
he satisfied; and no doubt many sections
doubt there are many sections
with which other jurists will :find find serious fault. Other critical
o0 :r.rontesquieu,
Montesquicu, in his "L'Esprit
"L 'Esprit des Lois,"
Lois," gave us a number of observa-
tions on the manner of making statutes, which are equally applicable applicable to any
restatement of the law made by anybody. Among Among these observations, are the
following:
I The style of statutes should be
I"The 1)e concise.
"It ought to be simple; a direct e~"pression
"It ex-pression is always more easily understood
understood
than an indirect one.
"It
"It is essential that the words used in in a statute should suggest the same
ideas in all men.
I Statutes must not be subtle; they are intended for people of average power
I"Statutes power
of understanding.
"When
"When aa statute doesdoes not need exceptions, limitations, qualifications,
limitations, or qualifications,
these ought not to be inserted; such details
inserted; such the need for new
details will create the
details."
details."
1010 Clarke B. Whittier, I"The Restatement of
I The Restatement of Contracts and Mutual
Contracts and Assent,"
Mutual Assent,"
17 Calif. L. Rev.
Rev. 441
441 (1929).
(1929).

BESTATEMENT OF
llESTATEMENT OF THE
THE COMMON
COMMON LAW
LAW 31
articles will be certain
articles certain to to appear;
appear; and the effect of the the Restate-
Restate-
ment upon the decision
ment upon the decision of cases by of cases by the
the courts
courts and and upon
upon the
the formal
formal
opinions of of the judges,
judges, will
will soon
soon begin to be be apparent.
apparent. All such such
material as
material as this
this should
should immediately
immediately be be collected
collected byby the Institute
Institute
and put
and put into
into the
the hands
hands of of its
its committees
committees of of restatement.
restatement. Not Not only
should such
should such matli\rial
material affect the revisions
revisions to to be made by the present present
committees; it
committees; it should be continually
continually collected
collected and and preserved by the the
Institute for
Institute for the use of future future revising
revising committees, to whom the
Restatement may be periodically referred.
entire Restatement
It seems proper for
It seems proper for the
the present writ.er
writer to to come to the support of of
the existing official
official draft, by considering
considering aa few of of the
the criticisms
criticisms
made by Professor Whittier. It
made It should not be supposed, however,
that the Reporter and his Advisers have always been in entire
that
agreement as to the merits of the official draft, either in form or
agreement
substance. That draft is the net result of
in substance. of argument and dis-
cussion. There have been "scenes "scenes of carnage and mutilation." mutilation."
They
They havehave become
become "inured"
"inured" to these scenes; and, to a sufficient sufficient
degree, they have acquired
degree, acquired a "moderation"
"moderation" and a "fusion "fusion of of
points of view"
points view" to make them feel justified in submitting the whole
result to
result to the
the Institute
Institute for adoption and for further improvements,
and in assuming
and in assuming such responsibility
responsibility as appears appears to be involved
involved in in
the titles of Reporter
Reporter and Adviser.
It was
It was somewhat
somewhat surprising to find that Professor Whittier *Whittier at-
tacks "the
tacks "the objective
objective theory"
theory" of of contract. No doubt it it would have
been profitable
been profitable if this attack could have been personal
been made at the personal
conferences
conferences of of the
the committee.
committee. The The present writer writer is not in any
case
case speaking for the Reporter Reporter or for any any otherother Adviser; but he
feels sure
feels sure that
that the Restatement would not be
the Restatement be improved by the
adoption of a "subjective"
adoption "subjective" theory theory of contract, instead instead of the "ob- "ob-
jective"
jective" theory. The fundamental fundamental reason for this this is that
that the sub-
jective
jective theory
theory is is based
based upon the the unprovable
unprovable assumption that "in- "in-
tention" means something
tention" means something other other than manifestation;
manifestation; that it means means
aa state
state or or condition
condition of something that
of something that we are are pleased
pleased to call call a
"mind," as opposed to physical 1
"mind," as opposed to physical body.u When body. ' 'When courts and text-
writers and the Institute
writers and the Institute speak speak of "intention"
"intention" as a fact having having
legal
legal operation,
operation, they they are
are merely
merely using
using a common
common form of of expression
e:ll.."})ression
11
11 The
The very
very same
same difficulty
difficulty exists
exists when
when wewe attempt
attempt to determine
determine the "in-
"in-
tention"
tention" ofof aa legislature
legislature oror of
of one legislator.
legislator. See
See Kohler, "Judicial
"Judicial Inter-
pretation
pretation Ofof Enacted
Enacted Law,"
Law," 9 9 Modern
Modern Legal
Legal Phil.
Phil. Series,
Series, 187,
187, 195;
195; Gray,
Nature
Nature and
and Sources
Sources of
of Law,
Law, §370.
§370.

32 IOWA LAW
LAW REVIEW
REYIEW
to say
say that certain types of manifestation
manifestation are operative and that
operative and that
others are not.
It
It mayor
may or it may not be wise to use this common
common form of expres-
sion
sion in Sections 55, 71, and 72. They could have been been stated in in
terms of manifestation alone, in more apparent harmony
apparent harmony with anwith an
"objective" theory.
"objective" theory. ButBut one
one who attempts to state
who attempts skate any part of of
our law must at many points yield to the necessity of speaking speaking in in
the tongue that is in common use, even even though it it is not as exact
exact
and scientific as he thinks himself capable
capable of making it. it. A limited
limited
distance in abandoning certain usages he may safely go; the safe
distance for inventing new terms and usages is considerably
considerably less.
It
It is not here being asserted, however, that these three sections sections do
not betray the influence of a subjective theory of contract.
contract. Even Even
if so regarded, they merely indicate
indicate that the objective theory has has
its limits; and surely no greater fault can be found than with the
form of statement that agreement in "intention"
"intention" is necessary, but but
that there are exceptions
exceptions where
where one party was negligent
negligent
12
or where
words have a meaning of which he
of which not aware.
was not
he was aware.12
Objective
Objective manifestations take many forms; they may be oral oral or
or
written words, hand motion in the language
language of the deaf and dumb,
deaf and
a nod of the head, or otherother visible bodily
bodily movements. Also, they
conceivably be heart beats or nervous reactions perceivable
might conceivably
only with the aid of some scientist's delicate machine.
machine. But if if the
truth is that itit is by objective manifestation alone that we can af-
fect others, we should
should not begin a restatement
restatement of contract
contract law by by
saying
saying that there must generally be a subjective meeting
subjective meeting of minds,
agreement in intention, as differentiated from expression.
an agreement
The sufficiency
sufficiency of a manifestation produce a certain
manifestation to produce certain legal
legal ef-
ef-
It seems
12 It
12
12 seems clear to the
clear to the writer
writer that the "objective"
that the "9objective" method
method is
is always
always used
used
by the courts in in interpreting written contracts.
contracts. The parties
parties are bound by by
what they said,saw, objectively interpreted.
interpreted. The courts
courts do not undertake to dis-
cover what the parties meant, in any subjective
cover subjective sense; and they hold a partyparty
bound by what what he said, even though he was not "negligent"
"negligent" in his choice of
cllOice of
words. Negligence
Negligence followed by change of position may work an estoppel; estoppel;
but negligence in in the choice
choice of words is seldom
seldom made an issue in the inter-
pretation
pretation of aa contract. It It is far too limited a view of contract
contract to hold that
that
agreement in subjective intention is necessary
necessary except
except where a 'party
party is "neg-
"neg-
ligent. "I"
ligent.
Professor
Professor Walter
Walter W. Cook wrote:
wrote: "It"it is fundamental
fundamental in the law of of con-
tracts that aa person is bound, not by his real, but by his manifested inten-
i.e., by his intention
tion, i.e., intention as manifested to the other party." ,"Agency 'Agency by by
Estoppel," 5 Col. L. Rev. 36 (1905).
Estoppel," (1905).

BESTATEMENT OF
BEST.:fTEMENT OF THE COMMON LAW
LAW 33
33
.feet
feet is always
always a question for judicial determination;
determination; this is true
true
even though the manifestation consists
manifestation consists of oral or written words.
Further, what conduct constitutes
constitutes a sufficient manifestation under
sufficient manifestation under
one set of circumstances
circumstances does not constitute one under another
another set.
It
It is believed that, whenever the courts or the Institute say that that
intention is the operative fact,
fact, the only meaning that is capable ofof
practical application is that the manifestations
manifestations that will be oper-
ative are not the same as in other cases.
The con:fl.ict
The conflict between subjective
subjective and objective theories is not a
objective theories
one.' 3 It
new oneP It existed in the views of Sir William Anson and Pro-
fessor T. E.B. Holland. In In his work on Contracts, the former wrote:
wrote:
"Dr.
"Dr. Holland's view (Jurisprudence,
(Jurisprudence, ed. 11, p. 258)
258) is that the
contracting parties
law does not require contracting parties to have a common
common inten-
tion,
tion, but only to seem to have one, that the law 'must (must needs regard
regard
not the will itself but the will as expressed.'
expressed.' Our difference
difference may
may
be shortly stated. He holds that the law does not ask for 'a (a union
of
of wills,'
wills,' but only for the phenomena
phenomena of suchsuch a union. I hold that
that
the law
law does
does require the wills of the parties to be at one, but that
when men present all the phenomena
phenomena of agreement,
agreement, they are not
not
allowed to to say that they were not agreed. For all practical pur-
conflict of view is immaterial.
poses, our con:fl.ict immaterial.""
In this con:fl.ict
In conflict of theory the present writer agrees with Holland,
and not with Anson. He £nds finds that the actual decisions
decisions of the
courts can best be explained on the theory of agreement
agreement in expres-
expres-
sion, rather
sion, rather than agreement
agreement in intention. The legal operation of
operation of
the words of of an agreement depends upon their effect upon otherother
people, and not upon the state of mind of the party using them.
people,
It was
It was said by Lord Watson:
"The appellant contracted, as every person does who becomes
"The becomes a
party to a written contract, to be bound in case of dispute by the
party
interpretation which a court of law may put upon the language
interpretation of
language of
the instrument. The result of admitting any other principle
principle would
would
contract in writing could be obligatory
be that no contract obligatory if the parties
parties
13 See the
13 See
13 the discussion
discussion of
of "Proof
"Proof of of so-called
so-called Mental Facts, especially
Mental Facts, especially the
the
Intention of
Intention of Parties"
Parties" by Wurzel
'Wurzel in 9 Modern Legal Phil. Series, 394. He
says: «"From
« From the beginning two theories have been contending with each
been conte,nding each other
other
and neither
and neither has
has been
been able
able to gain aa foot of ground. One is the theory of ex-
pressed intention,
pressed intention, placing
placing most
most stress
stress on
on the
the declarations
declarations the party
party has actual-
ly made and which,
which, therefore, has an objective existence. The other other theory
is that of thethe real intention. ItIt seeks to discover behind the declaration
declaration the
actual psychological
psychological processes
processes of which
which the declaration was the result."

34 lOWA
IOWA LAW REVIEW
LAW REVIEW
honestly attached in their own minds different meanings to any

material stipulation.'
stipulation. "1'~4
In another case it was said by Lord Sumner:
Sumner:
"I
"I dare say few assured have any distinct view of their own own onon
the point and might not even see it
the it if it explained to them.
it were explained
But what they intend contractually
contractually does not depend on what they they
understand individually. 5
individually."1"IG
It
It is to be observed that Sir William
William .Anson
Anson thought that for all all
practical purposes
practical purposes the conflict of view is immaterial. Evidently
Evidently
he thought that the rules of court action constituting
constituting the law of of
contracts
contracts would be the same and would lead to the same results,
whichever theory as to mutual assent is adopted. There There is a ma-
terial difference between a rule of court action and a theory of con-
tract
tract;j and it is true that the theory is of importance
importance only as it in-
fluences
fluences the substance and application of the rules and as it it clarifies
clarifies
them to the reader. In the present instance Anson .Anson was probably
probably
wrong in thinking that the theory held does not affect judicial
affect the judicial
decisions made. The present writer is confident that the actual actual
decisions being
decisions being rendered cannot be explained and their rules re-
stated without making
making use of the objective theory. There are are too
many thousands of cases in which a contractor has been held bound
many bound
in accordance
in accordance with his objective expression, even even though he could could
convince both a court and a jury that he never never had a consenting
consenting
mind to the agreement enforced
mind enforced by the court and also that he was
not negligent in his choice of the expressions used.
With respect to the case of the ship "Peerless"
"Peerless" which is used as
an illustration under
an under Section 71/71,166 it
it is believed that there
there was no
contract, not because of the absence of a meeting of two hypothet-
contract, hypothet-
ical "minds,"
"minds," but because the objective expressionsexpressions of of the two
parties
parties were not in agreement
agreement and did not so identify the subject
identify subject
matter of the contract as to make itit enforceable.
enforceable. In In the light of of
the surrounding facts, the words used by the two parties parties might
might
equally well be taken to express anyone any one of the following:
following: (1) (1)
October "Peerless"
agreement to sell the cotton on the October (2) agree-
"Peerless"; j (2)
ment to sell the cotton on the December
December "Peerless";
"Peerless"; (3) (3) a promise
promise
to sell cotton on the October "Peerless"
to "Peerless" and a return return promise to
Stewart
14 Stewart
14
14 v. Kennedy,
v. Kennedy, 15
15 App.
App. Cas.
Cas. 108,
108, 123
123 (1890).
(1890).
Becker v.
15 Becker
IG
IG v. London
London Assur.
Assur. Corp.,
Corp., 117
117 L.
L. T.
T. 609
609 (H.
(H. L.
L. 1918).
1918). See further
further
Pollock, Contracts (9 ed.) 5.
ORaffles
16 v. Wichelhaus,
Raffies v. Wichelhaus, 22 H.
H. &
& C.
0. 906 (Exch. 1864).
906 (Exch. 1864).

RESTATEMENT
.ETATEMENT OF
OF THE COMMON LAW
COMMON LAW 35
buy cotton
cotton on the December "Peerless";
"Peerless"; (4) a promise to sell cot-
ton on the December "Peerless"
"Peerless" and a return promise to buy cot-
ton onon the October "Peerless."
"Peerless." The decision has been explained by by
Mr. Justice Holmes on the objective theory, when he said that there
was no contract in in this case not because the parties
parties meant different
different
things, but because they said different thingsP things.' 7
The
The present article cannot undertake
undertake to deal at any length with
length with
Professor Whittier's objections to the substantive
substantive rules laid down down
in specific sections, suchsuch as 36, 41, and 43-47.
4347. No doubt the restat-
ing
ing committee
committee would have been affected affected in some degree, had his
objections
objections been made face to face during discussion. One's confi-
dence cannot help being affected when he finds that his "pet
dence cannot "pet hob-
bies"
bies" are derided and
derided and his "dearest formulas"
"dearest formulas" are rejected, by men
men
who seem in
who seem in other matters to have a modicum of intelligence, after after
he
he has
has had unlimited opportunity
opportunity of oral argument
argument before them.
It
It is
is certain,
certain, however, that no draftsman
draftsman will be affected by a crit-
icism that aa stated rule is "unsound
icism "unsound in principle"
principle" when the only only
"principle" that
"principle" that is
is alleged
alleged to
to make
make the
the rule "unsound"
"unsound" is one that that
the draftsman does not accept. The common law does not have
the have any
substratum of grand eternal principles on which it
of grand it rests, except
except
administrative action should continually
that judicial decision and administrative continually
be readjusted to the needs and desires of mankind. Argument from
be readjusted
"principle"
"principle" almost almost always
always involves
involves aa subtle
subtle begging of the ques-
tion.
tion.
It will be interesting to discover how many would be willing to
It will to
accept a rule that the revocation of an offer is effective effective as soon as as
the offeror has used "all haste" in starting
"all reasonably possible haste" starting it
it
on its way. The justification for holding holding that the offeree's accept-
ance is operative, even though the revocation by the extraordinar-
is operative,
ily diligent offeror is lost by an act of God, or for other reasons reasons not
involving any negligence is not received before acceptance, is that that
dissatisfaction.'18s It
the rule is in operation and is not giving dissatisfaction. It may
may
"The law
'.7 "T)le
17
17 law has nothing to do with the actual state of the parties'
parties' minds.
contract, as
In contract, it must go by externals, and judge parties by their
as elsewhere, it
conduct. If
conduct. If there had been 'Peerless,' and the defendant had said
been but one 'Peerless,'
'Peerless' by mistake,
'Peerless' 'Peri,' he would have been bound. The true
mistake, meaning 'Peri,'
ground decision was not that each party meant a different thing
ground of the decision thing from
the other .. .. .. but that each said aa different thing." Holmes, The Co=onCommon
Law, 309.
Law, 309.
:s See
18
18 See the revocation was started before any ac-
the following cases in which aa revocation
ceptance:
ceptance: Patrick v. Bowman, 149 U. S. 411,
Bowman, 149 411, 13 Sup. Ct. 811 (1893);
(1893); Hen-

36 IOWA LAW
IOWA LAW REVIEW
B EVIEW
be that the contrary

contrary rule would also work reasonably well. There
are plenty of rules of law that might equallyequally well have been other-
have been other-
wise.
The rule of Dickinson Dodds199 stated in Section
Dickinson v. Dodds Section 42 was limited
limited
property because
by the Reporter to sales of property because some of his Advisers,
Advisers,
not including the present writer, believe that the rule is not '''fund-
"fund-
amentally sound." The stated rule, therefore, was limited in ac-
cordance with the facts of the only judicial decisions
decisions that thus far
support it. It should be observed that there is nothing
it. It nothing inin Section
Section
42 to prevent a court from applying an exactly
42 exactly similar
similar rule in cases
that do not involve sales of property. This is a good illustration
of a fact that should be insisted upon over and over again. This is
that the Restatement being constructed
constructed by the Institute does not not
purport to be a closed, perfect
perfect and complete system of law. If If it is
offered as constituting such a system, it
offered it would do tremendous
tremendous dam-
age to the community but for the fact that the actual decisions of of
the courts would promptl~r
promptly riddle the pretension
pretension so full of holes
holes
that it
that it would cease to obstruct the view. While the present present writer
writer
agree with all of Professor Whittier's criticisms, his at-
does not agree
titude toward the Restatement and its use by the courts is exactly
the same. "He "He hopes that it it will not be considered oracular. That That
would hamper the growth of the law and establish establish permanently
permanently
some things that should be given further consideration."
some
character of the Restatement
The form and character Restatement are now sufficiently
sufficiently
established to raise the question as to its effect upon the courts and
upon students of law. It
upon It is evident that the Restatement
Restatement is not a
Code of laws. It It does not purport
purport to be imposed
imposed upon anybody
anybody or or .
to constitute a conclusive basis of decision. Therefore, not only only
should itit not in any serious degree operate to limit the develop-
ment of law in accordance
accordance with changing
changing conditions, practices, and
mores; it should not even become the basis of extended commenta-
mores; commenta-
ries or the subject
ries subject of textual interpretation. It It is materially
materially differ-
ent from the Negotiable Instruments
Instruments Law, the German Civil Code,
and the Code Napoleon. The continental codes codes have been severely
severely
,thorn v. Fraser, [1892] 2 Ch. 27, revocation
·thorn revocation mailed several hours
hours before ac-
a.c-
ceptance; Stevenson
ceptance; Stevenson v. McLean, L. R. 5 Q. B. D. 346 (1880),
(1880), revocation
revocation tele-
graphed 99 minutes before
graphed before acceptance
acceptance and received
received bnly 12 minutes
minutes after
after ac-
ceptance; Byrne v.
ceptance; v. Van Tienhoven, L. R. 5 C.C. P. D. 344 (1880);
(1880); Thompson v.
James, 1818 Scot. Sess. Cas.
Cas. (Dunlop)
(Dunlop) 1. Text-writers
Text-writers on contracts seem
seem to be
uniformly in
uniformly in agreement.
agreement. SeeSee Anson,
Anson, Pollock,
Pollock, Salmond,
Salmond, Williston,
Williston, Page.
10 2 Ch.
192 Ch. D.
D. 463
463 (1876).
(1876).

:RESTATEMENT
RESTATEMENT OF THE
THE COMMON
COMMON LAW
LAW 37
criticized by the sociological jurists of Europe as having led to

much barren textual interpretation, to the narrowing
narrowing of judicial
minds, to the destruction of "free
"free decision,"
decision," and to the divorce-
ment of statutory law from the "living"living law"-the
law'"--the actual prac-
social life.20
tices of business and sociallife. 20
If
If the practices
practices of a commnuity
commnuity
come
come to be greatly disregardful of what the codes say, it may be-
come more important
important for a lawyer
lawyer and a business man to lmow lmow the
common practice than to !mowknow the "law."
"law." Such a situation must
frequently lead to great hardship and radical dissatisfaction
dissatisfaction with
government, unless the courts and executives
government, executives are wise enough to
modify the printed word by liberal "interpretation"
"interpretation" and judicious
2211
fiction.21 The moral sanctions-that
sanctions-that is, the expressions
expressions of approval
disapproval by our neighbors--may
and disapproval sufficient to prevent
neighbors--may be sufficient prevent
many disputes and violent conflicts; but when they fail, there must must
20Professor
20
20 Lambert rebels
Professor Lambert rebeis against "the"the sterile discouraging methods
sterile and discouraging
the 1800
of the 1800's'5 which have have paralyzed juristic thought in in France."
France." 9 Modern
Modern
Legal
Legal Phil. Series,Series, 251.251. He says:says: "No "No sooner
sooner had the Civil Code been been
promulgated than observation of the incessant action of juridical
promulgated juridical evolution
evolution
was laid aside for the easier easier study of legislative texts. ScientificScientific study gave
commentary. Interpretation
way to mere commentary. Interpretation was was deluded into the beliefbelief that
that the
Civil Code and
Civil and the few few laws which have completed completed it it and modified it it would
would
serve indefinitely
serve indefinitely to answeranswer all the juridical
juridical problems
problems which the practice of of
affairs gives rise to each day." With respect respect to the GermanGerman Civil Code he
adds: '"Codification
adds: immediately stimulated in Germany the spread
'Codification inlmediately spread of that
narrow and sterile
narrow sterile method which during during the 1800's
1800's had paralyzed
paralyzed the work of of
'school of el>.-pounders
our own 'school expounders of the Civil Code.' Code.' The already
already abundant
abundant
literature upon the German
literature German Civil Code presents a striking sinillarity similarity to those
first products inspired by the French Civil Code."
first Code."
Alvarez, 99 Modern Legal Phil. Series, Series, 447, says: "Judges "Judges and jurists
have believed
have believed thatthat after
after codification
codification they did not possess the same powers of of
interpretation as
interpretation as before
before under
under early
early French law or under Roman law. law. They
believed that theirtheir only function was to apply the strict letter letter of the law and
to search
to search for the intent of the legislators in in cases
cases presenting
presenting novel problems,
problems,
without aa thought
without thought whether these new situations were susceptible susceptible of the same same
sort of
sort of regulation
regulation as as that
that already
already provided
provided by by legislation.
legislation. But we have have also
seen how,
seen how, inin the
the course
course of of the
the 1800's,
1800's, in in spite
spite ofof aa superstitious
superstitious regard
regard for
the letter
the letter of
of the
the lawlaw they yet triedtried (timidly, it it is true, under the guise guise of
of
interpretation) to
interpretation) to adjust
adjust codified
codified law
law to to the
the new
new exigencies
exigencies of practice, by by
rendering it
rendering it more
more flexible,
flexible, by
by el>.-panding
expanding it, it, or even by creating
creating new rules."
21 Some of
21 Some
21
of the
the European
European critics seem to
critics seem to direct their attack
direct their attack merely
merely at the
at the
codified rule
codified rule as textually
textually interpreted by professorial
professorial jurists and
and not at the
the
court decisions
court decisions dealip.g
dealing with the livingliving problems of men. They They include
include the
latter in
latter in that
that "living
"living law"law" forfor which
which theythey yearn. See Lambert,Lambert, 99 Modern
Modern
Legal Series, 251;
Legal Phil. Series, 251; Ehrlich, distinguishing "lawyers'
Ehrlich, id. 47 ff., distinguishing "lawyers' law"law"
from "statutory
from "statutory law." law."

38 IOW.LJ.
IOWA LAWLAW REVIEW
. EWIEW
be appeal to a state organization,

organization, anll
and its action should be of a
kind that gives general satisfaction. If it fails in this, business
If it business is
strangled, success in the competition with happier nations is made
impossible, destructive outbreaks and lunatic experiments
experiments are sure
to occur. A people is bound to go under in the struggle for ex-
istence if it
it has not the capacity
capacity to perfect
perfect an organization so that that
administrative action is reasonably
its judicial and administrative reasonably uniform and and inin
harmony with the prevailing
prevailing and deeply approved
approved mores.
It should be observed, however, that this unfortunate situation
It should
may arise not merely from the attempt of a despot to impose his
will upon others or from an ill-judged
ill-judged reception of a foreign code code
system in disregard of the native civilization;
or system civilization; it may arise
it may arise also
because the atoms composing the molecule become become unruly, because
because
the people become too numerous and and too varied in theirtheir practices
practices
and interests, because
because there are no "prevailing"
"prevailing" and uniformly
uniformly
approved mores, because the arm of the state state becomes
becomes palsied with
uncertainty and the guiding hand that leads along the the main
main trav-
eled road to contentment
contentment is missing. The work work of the Institute is
is
an attempt to statestate anew what the practices
practices and customs
customs of this
great and seething community
great community now are, as they are evidenced by by
innumerable instances of judicial action at the pin-points
innumerable pin-points of strain
conflict. It
and conflict. It is an attempt to demonstrate
demonstrate and to state in words
the uniformities (the rules) that are to be found in those those innumer-
able instances and to make a selection and a recommendation
recommendation from
among competing rules and practices.
practices. ItIt is an attempt to analyze
analyze
and classify and define, at a time when such reorganization
reorganization workwork
appears to be loudly demanded,
demanded, and thus supply a guiding hand hand to
those who may desire guidance
guidance in directing the strongstrong arm of the
22
state.
state. 22
Is the attempt
attempt likely to be successful7
successful? Will judgesjudges be able
able to
understand
understand the Restatement and be willing to be guided guided by it it?7
This is yet to be seen. Judge Cardozo predicted that "those "those who
begin by scoffing will end by paying the tribute of adherence adherence and
Ehrlich, who
22 Ehrlich,
22 who certainly
certainly cannot
cannot be be justly
justly accused
accused of of underestimating
underestimating the
the
sociological aspects of law, says: "The "The codification
codification of the law actually in
force becomes
force becomes aa necessity
necessity after
after the
the body
body of
of lawyers'
lawyers' law
law has increased
increased beyond
beyond
Notwithstanding some undeniable
a certain point. Notwithstanding drawbacks, such codifica-
undeniable drawbacks,
tion seems
tion seems to
to be
be advantageous
advantageous on the whole. By By summing up the entire course
course
of legal
of legal development
development to
to date,
date, it
it creates
creates some sort of
some sort of order
order out of the
out of chaos of
the chaos of
the law,-which,
the law,--which, in
in the
the course
course ofof time,
time, tends to become
tends to become an an impenetrable
impenetrable wilder-
wilder-
oven to the most skillful.'
ness even skillful." , 9 Modern
modern Legal Phil. Series, 61.

.ESTATEMENT
RESTATEMENT OF
OF THE COMMON LAW
LAW 39
applause. " But he
applause." he is
is himself
himself the
the presiding
presiding judge
judge in a court
court that
that
already refused
has already refused to apply
apply Section
Section 164
164 of
of the Contracts
Contracts Restate-
Restate-
ment. 2323 Elihu
Elihu Root
Root predicted
predicted that we we shall
shall have
have "a "a statement
statement ofof
the common
the common law law of of America
America which
which will bebe the prima
prima facie basis on
facie basis on
which judicial
which judicial action willwill rest," andand that, while
while itit cannot
cannot bebe final
final
and there
there must be revisions, "we "we will have dealt
dealt with the past and and
will
will have gotten this old man of the the sea
sea off our shoulders
shoulders in great
in a great
measure.""
measure.
During the
During the six years following their statements,
statements, these two learned
learned
men
men must
must have had had some moments
moments of apprehension
apprehension and strong
temptation to repudiate
temptation repudiate their predictions; but it
predictions; but it may be be that they
they
still have
have hope. It It will always remain
remain open to individual
individual courts
to feel themselves
to themselves as competent
competent as the the Institute to analyze and and
elassify and to select
classify select among
among competing
competing rules and and practices.
practices. A
prima
prima facie
facie basis does not not have to be used; but it it does
does not lie in the
mouth of the present writer to say that it will not "gather "gather author-
ity as time goes on." on."
It has often
It often been
been said that
that" "taught
taught law is tough law."
law." Will the
Restatement
Restatement becomebecome the taught law~ There
law? There may be some hope that
that
it
it will. Not that the RestatementRestatement will be used as a text to be
memorized and repeated;repeated; it it certainly
certainly ought not to be. But in the
discussion and criticism
criticism of judicial
judicial decisions, and even in the con- con-
sideration
sideration of social mores and economic theories, when the learned
social mores learned
instructor reports that some courts hold this and some
instructor reports some theorists
theorists as-
sert that,
that, he mustmust now add that the American Law Institute Institute says
24
other.24
the othe1·.
the
23 The
23 The New York Court
New York Court of
of Appeals
Appeals declared that Section
declared that Section 164
164 of
of the
the Con-
Con-
tracts Restatement
tracts Restatement does not state the law of New York. Langel v. Betz, 250
159, 164 N. E. 890 (1928).
N. Y. 159, There were previous New York decisions
(1928). There
contra; and the court
court did not feel ready to overrule these decisions, in
in order
order
to be in
in agreement with the Institute.
24 Professor
24 Lambert has shown that, in their treatment
Professor Lambert treatment of a codified sys-
tem of law, lawlaw professors
professors and co=entators
commentators may be far more subject
subject to
to
criticism than are the judges of the courts. See
criticism than See 9 Modern
Modern Legal Phil. Series,
251. Some of his statements are as follows: "Its "Its principal effect has been
create a chasm that
to create that widens each day between
between the theory of text-writers and
and
the rules created by judicial decisions. . . The law expounded in in class room
and textbooks differs more and more from that applied
applied in the courts. . . On
On
the one hand we shall have
have a body of "taught
"taught law"
law" ("doctrine"),
("doctrine"), a system
:fallen into disuse, having aa merely conventional and fictitious existence;
fallen existence; and
on the other hand the rules as applied in
in the courts, the system which is really
in
in use."
lse."I

40 IOWA LAW
lOWA LAW :REVIEW
RE;EW
There are very many places in the law where economic economic needs
social desires are not sufficiently
and social sufficiently clear to point definitely to to one
rather than another. In
rule rather In such a case the selection
selection made by the the
well be accepted. In
Institute may well In other cases the courts may have
made a false start and then been been induced
induced by the
the doctrine of starestare
decisis
decisis to camouflage their subsequent contrary decisions by obvious
fiction, confusing terminology, and distinctions without a differ-
ence. A large part of the existing confusion and tIDcertainty uncertainty is
directly due to these two causes.
In many instances there has been obfuscation of intellect by such
"privity of contract;
terms as "privity contract;"I I and yet the court will render a
just decision in favor of a third party beneficiary
beneficiary by saying that that
"the privity.' ' 25 The House of Lords has been
"the law creates the privity."2fi been
heard to say that "our"our law lmows
kmows nothing of a jus quaesitum tertio
q1wesit'nm tertio
arising by way of contract,
contract,'"26
'26 while four years later it it gave judg-
ment in favor of a third party on the theory, totally unimaginedunimagined by by
the contracting parties, that the promisee had acted as a "trustee" "trustee"
27
for him. 27 The New York courts held that a third party could get get
no enforceable
enforceable right unless the promise was to perform perform an existing
obligation
obligation owed to him by the promisee ;28 ;28 and then they held that that
requirement was fully satisfied in one case where
this requirement promisee
where the promisee.
was the husband
husband of the beneficiary and was causing her enrichment enrichment
$50,000,29 and also in another case where
by buying her a gift of $50,000,29 where the
promisee was the rich aunt of the beneficiarybeneficiary and was merely try-
ing to make a donation for her beloved niece's future support.3300
In many cases they say that the third party has no legal right un-
less the contract intentionally for his benefit
contract was made intentionally ;31 but at
benefit ;" at
the same time they hold that, when when a debtor arranges
arranges for the pay-
ment of his debt by another person, he is making making the contract
contract not not
for his own benefit,
own benefit, but for that of his creditors, thus enabling them
maintain action.32
to maintain 32
25 Brewer
2:; Brewer v. Dyer, 77 Cush.
v. Dyer, 337 (Mass.
Cush. 337 1851).
(Mass. 1851).
"o Dunlop Tyre Co. v. Selfridge, [1915]
26 Dunlop Tyre Co. v. Selfridge, [1915] A. A. C.
C. 847.
847.
Les Affreteurs
27 Les Affreteurs
27 v. Walford, [1919] A. C. 80l.
[1919] 801.
28 Vrooman
28 Vrooman v. v. Turner, 69 N.
Turner, 69 N. Y.
Y. 280 (1877).
280 (1877).
Buchanan v. Tilden, 158 N. Y.
29 Buchanan v. Tilden, 158 N. Y. 109,52
21) 109, 52 N.
N. E. 724 (1899).
E. 724 (1899).
30 Scaver
so v. Ransom,
Seaver v. Ransom, 224 224 N.
N. Y.
Y. 233
233 (1918).
(1918).
a'
31 Simson
Simson v. Brown, 68 N. Y. Y. 355
355 (1877);
(1877); Blymire v. Boistle,
Boistle, 66 Watts
Watts 182
182
(Pa. 1837).
1837).
32 Lawrence
32 Lawrence v. v. Fox,
Fox, 20 N.N. Y.
Y. 268
268 (1859),
(1859), followed in numberless
numberless cases.
cases. In
In

:RESTATEMENT
BEST.ATEMENT OF
OF THE COMMON LAW
COMMON LAW 41
In
In cases of this kind
dnd it
it is possible
possible for the Institute
Institute to cut boldly
boldly
through the labyrinth of verbiage and build a straight path by
through by
which courts and teachers
teachers and students may reach directly and
without difficulty the firm ground to which the courts courts in the great
great
majority of cases, after a long struggle in the morass, have actually
of cases, actually
already arrived. 3333
It
It is possible that laymen and members of the Bar may be led to
expect too much of the Restatement. They may expect simplicity,
expect simplicity,
where life isis itself too complex to permit
permit of simplicity. They may
finality, when the truth is that no legislator
expect finality, legislator or jurist has
the capacity to anticipate 01;
the oi to control the future. They may ex-
pect near
near perfection, as a result of what seems to them a mighty
effort of scholars and jurists. These they will not get;
effort get; and the
ensuing judicial development
development of the law ought soon soon to disabuse
their minds of the error. It
their It may still be hoped, however, that they
will get a better systematic statement than they have had before,
one that will itself mark some progress in the evolution of law and
one and
society.
society.
ARTiUR L. CORBIN
ARTHUR CORBmN
YALE UNIVERSITY
YALE
Pennsylvania there ·isis a line

line of these in-
Blymire v. Boistle; these
of cases contra to Blymire
clude Delp v. Bartholomay Brewing Co., Co., 123 Pa.Pa. 42, 15 (1888), and
15 Atl. 871 (1888),
224 Pa.
Howes v. Scott, 224 Pa. 7, (1909).
7, 73 Atl. 186 (1909).
In Schneider v. Ferrigno, 147 Atl. 303 (Conn. 1929),
3 In
33
33 court 'was
1929), the court was
aided by sections 133 and 135 in holding that a mortgagee could maintain suit
promise made by the purchaser of the mortgaged premises
on aa promise and
premises to assume and
pay the mortgage debt, even though the promiseepromisee was a party who was not not
himself bound
himself to pay
bound to debt.
that debt.
pay that "I
II

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Restatement Common Law PDF

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Yale Law School

Yale Law School Legal Scholarship Repository

The Restatement of the Common Law by the

Follow this and additional works at: http://digitalcommons.law.yale.edu/fss_papers

HeinOnline -- 15 Iowa L. Rev. 19 1929-1930

At a meeting of the Association held in December, 1921, 1921, a resolu-

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the sacrifice. One gains a fusion of points of view; a balance, a

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Mr. Root further

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The present writer is quite in agreement

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honestly attached in their own minds different meanings to any

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be that the contrary

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criticized by the sociological jurists of Europe as having led to

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be appeal to a state organization,

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Pennsylvania there ·isis a line

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