Holmes: The Path of the Law (By Martin Marquez Jr.)

About five pages in to his writing, Holmes attempts to rectify a common misconception as to the creation of contracts and the "true theory of contract". Holmes makes a very interesting point in stating "In my opinion no one will discuss some fundamental questions intelligently until he has understood that all contracts are formal, that making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs, - not on the parties' having meant the same thing but on having said the same thing." So is it the case that Holmes is stating that contracts should be created not on the basis of understanding and consent but through exact duplicate language used by both parties with completely separate intentions and interpretations? Is it that the majority of contracts, if not all of them, should be based on deception and misunderstanding?

Now after reading this quote over several times and thinking it was completely false and an arrogant statement, I suddenly realized that it is very much a logical approach to contracts. When people enter into a contract and that contract becomes enforced, it is the exact language of that contract and those words stated that determine the agreement. It is not the actual intentions of those who created the contract that allow it to exist. People may enter into a contract for multiple reasons, non of which may be even a present thought in the mind of the other party. A contract can only be formed then, when two people decide on the same words to express a contractual agreement, their intentions for contracting whether the same or not, become irrelevant, so long as the terms of the contract are fulfilled. 

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