Consent as the basis of contract in modern law
Having looked at two factors—form and causa—which are not essential to the modern concept of contract, we now have to turn our attention to the one which is: consensus. Consent forms the basis of the modern law of contract.
But what exactly does that imply? It is obvious, first of all, that not every kind of consent can be relevant. A and B agree that Socrates is a stone,[2882] or that Socrates is Socrates.[2883] Clearly, their minds are ad idem, and thus there is consent. But it would be absurd to claim that this agreement can create a contract (or, for that matter, a pactum). Thus, consent between the parties has to relate to performance. This was already very clearly seen by the medieval lawyers; it is necessary"ut consentiant in idem, scilicet dandum faciendumve ex diversis motibus animorum, postmodum convenientes in quid unum faciendum vel dandum".[2884] [2885] But even where this is so and where, for instance, A wants to hand over his sedan chair to B, and B indeed wishes to receive it from A, the mere agreement as such, that is, the fact that both parties intend one and the same thing, cannot give rise to a binding obligation. This is because it is necessary that these intentions be communicated, in one way or another, between the parties. No specific formalities have to be complied with, but there has to be a declaration. The intention has to be expressed; whether verbally, or in writing or, for instance, by simply nodding one's head, does not matter. As a contract involves (at least) two parties, we have in fact two such declarations of intention. They are normally referred to as offer and acceptance. This way of analysing the conclusion of contract reveals two specific problem areas which modern legal systems have to grapple with. On the one hand, an offer can sometimes not be accepted immediately. On the other hand, it must be realized that both offer and acceptance are in turn composed of two essential elements, namely the intention of the party and his declaration. Hence the potential for a further conflict of interests: for will and declaration do not necessarily coincide. One (or even both) of the parties may have made a mistake in drawing up the declaration(s), or the opponent may have misunderstood it. It therefore has to be determined which of the two elements is to prevail. Does it matter, as far as both conclusion and interpretation of the contract are concerned, what the parties have intended or what they have in actual fact declared? Both views (normally dubbed will theory and declaration theory) are (and have been) advocated, though usually not without certain modifications.[2889]
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