Sec 175

A promise uttered in jest has no binding force, so far as concerns parties conscious of the fact that it was so uttered. "Verborum quoque obligatio constat, si inter contrahentes id agatur: nec enim, si per jocum puta vel demonstrandi intellectus causa ego tibi dixero spondes? et tu responderis spondeo, nascetur obligatio."1 This is the case, as the context shows, with promises made in dramatic performances, and as part of exercises of instruction in a foreign language.2 Analogous cases, as tion determines the will, this must be taken in a very limited sense. It is the person acting who concedes to the error this controlling force. His freedom of choice between opposite alternatives is unlimited; no matter what may have been the advantages which the error might foreshadow to him, he could reject them. The right conception of the question rests on distinguishing the will itself from prior influences in the mind of the person willing ; the will is the substantive fact which must lie at the basis of all juridical relations ; and it is both arbitrary and unreasonable to confound the fact itself with the mental processes which precede it. And the context of the passages cited from the Roman law shows that error is a ground for relief from the obligation of contracts only in peculiar cases where it goes to matters of essence, and that even in those cases it does not relieve from liability when it is culpable.

Promises known to be in jest do not bind.

> L. 3, sec 2, de ob. et act. (44,7). On this topic see infra, sec 661.

2 As is noticed by Windscheid (Pand. sec 75), the reservatio mentalis is without legal significance, since a purely secret condition of mind cannot be shown. When a person says : " I will do this," it will be presumed he intended what he says until the contrary is objectively shown'.

According to Windscheid (Pand. sec 75), simulation is the expression, for the purpose of bringing about an apparent legal relation, of an intention not really entertained. It is possible that the party simulating may have really had another object in view ; and in such case, the question arises whether the latter object may not be effected. The answer to this question depends upon, (1) Whether the expression of intention relied on can be regarded as capable of sustaining the particular interpretation ; (2) Whether the intention so assumed is one which the law can carry out.

Two interesting essays by Dr. Joseph Kohler, on mental reservation and simulation, will be found in Ihering's Jahrb. for 1878, vol. 17, pp. 91-158; 325-356. Dr. Kohler takes the ground that mental reservations are inoperative, because, (1) The law cannot take cognizance of unexecuted mental states, and, (2) The executed purpose is the only purpose that can be regarded as intended. He contests, with much force, Savigny's position that "simulation " is a bilateral mental reservation, and that mental reservation is a unilateral mental simulation. Kohler, on mentioned by Savigny, may be noticed in the Roman contracts of mancipation, and similar processes, in which words were used symbolically; and illustrations of the same kind may be found in our own bonds, in which cautionary penalties are inserted.1 The question is, what is the sense in which the promisor knew the promise was accepted by the promisee?2 If both parties knew that the promise was to be inoperative, it does not bind.

Sec 176

A party, however, who consciously and intentionally makes use of false statements to obtain a benefit, not only must submit to have any contract thus induced rescinded at the election of the defrauded party, but exposes himself, as will hereafter be seen more fully, to an action for deceit.3

Error when conscious, exposes to action of deceit, and to rescinding of contract.

the contrary, argues that simulation has nothing in common with mental reservation. It involves, he maintains, no disharmony between expression and intention. The actor, for instance, who promises on the stage to pay a hundred ducats to another actor, simulates, but it is understood that the whole transaction is unreal. It is otherwise, however, as to the promise to which a mental reservation is attached. The promise is in no way made inoperative by the mental reservation.

The cases of divergence between intention and expression are thus divided by Scheiff (following in this respect Windscheid) :-

1. Intended Divergence.-Under this head fall jests, parables used for instruction, and simulation. According to Scheiff, the person making a promise is just as liable when he ought to know that what he said was supposed by the other party to be in earnest, as if he actually knew this was the case. -Mental reservations fall under this head ; and a party is precluded from falling back on them as a defence, (1) Because they are immoral, (2) Because to admit such defences would destroy business.

2. Unintended Divergence.-Here a distinction is taken between "confusion" and "error" (" Verwirrung " and "Irrthum") ; the first being unconscious action, the second, action under mistake. The latter, which is error in its technical sense, is defined as a "defective or wrong impression of law or fact," including, therefore, error juris et facti. The distinctions taken on this point are noticed, infra, sec 177.

1 Promises under duress are subjeot to similar considerations ; supra, sec 144. An indebtedness based on a fact known to be erroneous, is asserted in such a promise. As against the promisee,, the party making the promise may contest the truth of its consideration. That an agreement, which both parties know to be impossible, is a nullity, see infra, sec 307.

2 Infra, sec 657.

3 Infra, sec 191 et seq. 282..