Page:Harvard Law Review Volume 9.djvu/95

A PROBLEM AS TO RATIFICATION. 6/ A second theory ^ is that the third person's assent to the origi- nal transaction is simply an offer, contemplating ultimate accept- ance by the principal, that ratification is such acceptance, and that, if the third person withdraws his assent before ratification, there never is mutual assent. This theory, of course, answers the prob- lem in the negative. There are obvious objections to saying that the third person's share in the original transaction must be treated as simply an offer. If it be simply an offer, and if the only accept- ance be ratification, the transaction will become incapable of ratifi- cation if the assumed agent does not within a reasonable time communicate the facts to the principal and secure a ratification ; but there really is no rule to this effect, and even if the transaction should be concealed from the principal for years, there is no reason why he cannot at last ratify it. An unexcepted offer expires if not accepted within a reasonable time after communication, for the reason that an offerer asks for an acceptance ; but the adverse party assenting to the original transaction now being discussed, in so far as the assent is an offer, asks for no acceptance beyond the assumed agent's assent, and upon getting that acceptance the ad- verse party ceases to look forward to anything but performance. In other words, in the case of a mere offer, the offerer knows there is no contract until acceptance, and if within a reasonable time there is no acceptance, he infers there is no contract, and acts accordingly, and hence there is normally an intention that an offer shall expire within a reasonable time ; but a person who makes a contract with an assumed agent, by him supposed to be authorized, conceives himself to have actually entered into a contract, is expecting no further acceptance, but wishes and understands him- self to be bound already. Besides, there is no question that when the ratification comes it makes a contract, not as of the date of the ratification, but as of the date of the original apparent mutual assent, and that in this sense, at least, the original transaction can- not be considered as a, mere offer. For all these reasons this sec- ond theory appears to be objectionable. A third theory ^ is that the original transaction includes both offer and acceptance, and creates a valid contract, but that the per- formance of the contract is conditional. The imagined condition may be a provision that the contract is not to be performed if 1 Suggested in the editorial note in 5 Am. St. Rep. 109. 2 Suggested in 5 Law Q. R. 440.