CONSTRUCTIVE CONTRACTS properly calls genuine contracts, despite the fact that mutual assent is absent, really are entitled to be identified with those con tracts which rest upon an undeniable mutual assent in fact? Are they actual con tracts in a true sense as distinguished from things which are not really in essence con tracts though the law for all practical pur poses regards them as such? Professor Cook tried to forestall the very answer to that question now to be given by saying of the case where a revocation of an offer of contract is started on its way by A before B accepts the offer, but the revoca tion does not arrive until after the accept ance: "As yet no one has arisen to argue that, inasmuch as real assent on the part of A is lacking there has been no meeting of minds, and so that no contract has been made; that, therefore, the true explanation of A's liability is to be sought in estoppel — he has represented to B that the offer is still open, B has changed his legal position in reliance on this representation, and A is therefore estopped to deny that a contract has been made." 1 May be nobody has arisen to call such contracts ones by estoppel; may be no body will arise to do so. But certain it is that they are not, from the point of view of legal philosophy, contracts based on genuine mutual assent, though of course they are enforced as such contracts every day in the year. And why are they enforced as mutual assent contracts? Only because no name has been coined for them. It is only a short time since quasi-contracts were insisted upon as genuine implied contracts because assumpsit was the remedy on them; yet they never were genuine contracts and to-day bear the distinctive name quasicontracts. In the same way, though we teachers in the law of contracts are, for the present, obliged to tell our students that the " meeting of minds" talked of in the 1 5 Columbia Law Rev., 40.
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contract cases is often a misnomer, — that a meeting of the expressions of the parties in an offer of contract and a communicated acceptance is enough to make a mutual assent contract despite the fact that in an accurate sense of the words the minds of the parties never meet at one and the same moment of time, — we do this because the poverty of legal phraseology so compels. Not yet have we become rich enough in legal vocabulary, because not yet have we found enough pressing necessity, to facilitate the distinction between those contracts where the minds of the parties meet in a true sense of the word and those other cases where a man is held bound by contract though he is doing all that he can at the time when the contract obligation arises to show that his mind is not in accord with the other party's mind. Such a discussion as that above outlined about " Agency by Estoppel" suggests, however, the desirability of evolv ing a terminology and enforcing the dis tinction. Perhaps " Contracts by Estoppel" may be the phrase we want, but estoppel is a strong word, implying ordinarily mis representation, and it may be we should not say that there is a technical misrepresenta tion in such cases where everything repre sented has been true at the time of the representation, and misrepresentation can, therefore, be found only by a fiction. The writer certainly does not favor the phrase "contracts by estoppel" for such cases. "Constructive contracts " would seem to be just the right phrase, but for the fact that Sir Frederick Pollock, moved apparently by the un-English sound of the term quasicontract, has recently suggested that " con structive contract ' ' should have been applied to what we call "quasi-contract."1 The suggestion that " constructive contract" is the equivalent of "quasi-contract" is indeed doubly unfortunate, coming as it does when we have just succeeded in sepa1 Sir Frederick Pollock's note in Maine's An cient Laws. 4th Am. ed. pp. 443-4-
