Page:Harvard Law Review Volume 32.djvu/721

IGNORANCE OF IMPOSSIBILITY AS TO CONSIDERATION 685 The ignorance of parties as to the impossibility makes no difference, and accordingly we are not obliged to seek the reason for there being no contract in some other element — such as, e. g., mistake. In fact, the latter theory seems not to work well here, if the theory is true that all the law requires for the formation of a contract is that the parties agree upon the abstract character of the thing promised,^^ that is, upon a mere idea stripped of all physical attri- butes and surroundings — actualities and potentiaHties — that the only requirement is that "the promise in question must appear^ to be for the doing of some act which if actually performed would be a good consideration for a binding unilateral promise." It is true that the cargo is at the bottom of the sea, but what of it? The idea of the cargo is undestroyed and unchanged by any possible alterations in the physical condition or location of the cargo, the parties being ignorant of the alterations. If the idea alone is the thing that matters, and it is to be released from all legal obHgation to correspond with or even resemble the reality, a mile or so of salt water makes no difference. If we change the case just put by supposing that at the time of the agreement A, by wireless message, knew that the cargo had gone down in mid-ocean, while B remained as before ignorant of this, and supposed that the cargo was still afloat and would in good time arrive in port, the case — as far as impossibihty of perform- ance and B's ignorance of it is concerned — seems to be identical with the A B case. We have added, however, the element of fraud. Is there any reason to beUeve that this added ingredient, i. e., A's fraudulent intention, or his knowledge of the impossibility of per- forming his promise, should make the transaction any more a contract than it was when A was innocent of such intent and knowledge? It is just as impossible in the latter as in the former case for A now or ever to deliver, and for B now or ever to receive and pay for that particular cargo. The expressed intentions or minds of both parties are exactly as before. It is only when you come to the unexpressed mind or intent of A that you find any difference. But this old criterion of the law, the "meeting of minds," if applied here, would furnish an additional reason for denying the existence of a contract, since A thought "I am selling ^ 2 Street, Foundations of Legal Liability, ho. ^ Italics are mine.