nowadays no one doubts that a man may be liable, without any malevolent
motive at all, for false statements manifestly calculated to inflict
temporal damage. In stating the case in pleading, we still should call
the defendant's conduct malicious; but, in my opinion at least, the
word means nothing about motives, or even about the defendant's attitude
toward the future, but only signifies that the tendency of his conduct
under known circumstances was very plainly to cause the plaintiff
temporal harm.

In the law of contract the use of moral phraseology led to equal
confusion, as I have shown in part already, but only in part. Morals
deal with the actual internal state of the individual's mind, what he
actually intends. From the time of the Romans down to now, this mode
of dealing has affected the language of the law as to contract, and the
language used has reacted upon the thought. We talk about a contract
as a meeting of the minds of the parties, and thence it is inferred in
various cases that there is no contract because their minds have not
met; that is, because they have intended different things or because
one party has not known of the assent of the other. Yet nothing is more
certain than that parties may be bound by a contract to things which
neither of them intended, and when one does not know of the other's
assent. Suppose a contract is executed in due form and in writing to
deliver a lecture, mentioning no time. One of the parties thinks that
the promise will be construed to mean at once, within a week. The other
thinks that it means when he is ready. The court says that it means
within a reasonable time. The parties are bound by the contract as it
is interpreted by the court, yet neither of them meant what the court
declares that they have said. In my opinion no one will understand the
true theory of contract or be able even to discuss some fundamental
questions intelligently until he has understood that all contracts are