THE LAW OF LETTERS--CONTRACT LETTERS
There are forty-eight states in this Union, and each of them has its own
laws and courts. In addition we have the Federal Government with its own
laws and courts. In one class of cases, the Federal courts follow the
state laws which govern the particular occasion; in another class of
cases, notably in those involving the interpretation or application of
the United States statutes, the Federal courts follow Federal law. There
is not even a degree of uniformity governing the state laws, and
especially is this true in criminal actions, for crimes are purely
statutory creations.
Therefore it is extremely misleading to give any but the vaguest and
most elementary suggestions on the law which governs letters. To be
clear and specific means inevitably to be misleading. I was talking with
a lawyer friend not long since about general text-books on law which
might be useful to the layman. He was rather a commercially minded
person and he spoke fervently:
"If I wanted to build up a practice and I did not care how I did it, I
should select one hundred well-to-do people and see that each of them
got a copy of a compendium of business law. Then I should sit back and
wait for them to come in--and come in they would, for every mother's son
of them would decide that he had a knowledge of the law and cheerfully
go ahead getting himself into trouble."
Sharpen up a man's knowledge of the law and he is sure to cut himself.
For the law is rarely absolute. Most questions are of mixed fact and
law. Were it otherwise, there would be no occasion for juries, for,
roughly, juries decide facts. The court decides the application of the
law. The layman tends to think that laws are rules, when more often they
are only guides. The cheapest and best way to decide points of law is to
refer them to counsel for decision. Unless a layman will take the time
and the trouble most exhaustively to read works of law and gain
something in the nature of a working legal knowledge, he had best take
for granted that he knows nothing whatsoever of law and refer all legal
matters to counsel.
There are, however, a few principles of general application that may
serve, not in the stead of legal knowledge, but to acquaint one with the
fact that a legal question may be involved, for legal questions by no
means always formally present themselves in barristers' gowns. They
spring up casually and unexpectedly.
Take the whole question of contract. A contract is not of necessity a
formal instrument. A contract is a meeting of minds. If I say to a man:
"Will you cut my lawn for ten dollars?" and he answers, "Yes," as valid
a contract is established as though we had gone to a scrivener and had
covered a folio of parchment with "Whereases" and "Know all men by these
presents" and "Be it therefore" and had wound up with red seals and
ribbons. But of course many legal questions could spring out of this
oral agreement. We might dispute as to what was meant by cutting the
lawn. And then, again, the time element would enter. Was the agreement
that the lawn should be cut the next day, or the next month, or the next
year? Contracts do not have to be in writing. All that the writing does
is to make the proof of the exact contract easier.
If we have the entirety of a contract within the four corners of a sheet
of paper, then we need no further evidence as to the existence of the
contract, although we may be in just as hopeless a mess trying to define
what the words of the contract mean. If we have not a written contract,
we have the bother of introducing oral evidence to show that there was a
contract. Most contracts nowadays are formed by the interchange of
letters, and the general point to remember is that the acceptance must
be in terms of the offer. If X writes saying: "I will sell you twenty
tons of coal at fifteen dollars a ton," and Y replies: "I will take
thirty tons of coal at thirteen dollars a ton," there is no contract,
but merely a series of offers. If, however, X ships the thirty tons of
coal, he can hold Y only at thirteen dollars a ton for he has abandoned
his original offer and accepted Y's offer. It can be taken as a general
principle that if an offer be not accepted in its terms and a new
condition be introduced, then the acceptance really becomes an offer,
and if the one who made the original offer goes ahead, it can be assumed
that he has agreed to the modifications of the unresponsive acceptance.
If X writes to Y making an offer, one of the conditions of which is that
it must be accepted within ten days, and Y accepts in fifteen days, then
X can, if he likes, disregard the acceptance, but he can waive his
ten-day time limit and take Y's acceptance as a really binding
agreement.
Another point, sometimes of considerable importance, concerns the time
when a letter takes effect, and this is governed by the question of fact
as to whom the Post Office Department is acting for. If, in making an
offer, I ask for a reply by mail or simply for a reply, I constitute the
mail as my agent, and the acceptor of that offer will be presumed to
have communicated with me at the moment when he consigns his letter to
the mails. He must give the letter into proper custody--that is, it must
go into the regular and authorized channels for the reception of mail.
That done, it makes no difference whether or not the letter ever reaches
the offerer. It has been delivered to his agent, and delivery to an
agent is delivery to the principal. Therefore, it is wise to specify in
an offer that the acceptance has to be actually received.
The law with respect to the agency of the mails varies and turns
principally upon questions of fact.
Letters may, of course, be libelous. The law of libel varies widely
among the several states, and there are also Federal laws as well as
Postal Regulations covering matters which are akin to libel. The answer
to libel is truth, but not always, for sometimes the truth may be spread
with so malicious an intent as to support an action. It is not well to
put into a letter any derogatory or subversive statement that cannot be
fully proved. This becomes of particular importance in answering
inquiries concerning character or credit, but in practically every case
libel is a question of fact.
Another point that arises concerns the property in a letter. Does he who
receives a letter acquire full property in it? May he publish it without
permission? In general he does not acquire full property. Mr. Justice
Story, in a leading case, says:
"The author of any letter or letters, and his representatives, whether
they are literary letters or letters of business, possess the sole and
exclusive copyright therein; and no person, neither those to whom they
are addressed, nor other persons, have any right or authority to publish
the same upon their own account or for their benefit."
But then, again, there are exceptions.