Professor Williston has recently pointed out' the change which the law of the formation of simple contracts underwent during the first century of its development. The change is fundamental. Originally the courts thought of a simple contract as involving an actual concurrence of the minds of the parties. Gradually this conception was supplanted by the notion that the objective and not the subjective state of mind of the parties is controlling. Where the actual state of mind differs from the apparent state of mind, the former must be ignored and, whenever they happen to be identical, it may be ignored without affecting the results ordinarily. The courts in the main have abandoned the subjective analysis and have adopted an objective one. Nevertheless, the cases and text books abound in language, the use of which shows an attempt to state results reached under the new analysis in the terminology of the old. Too frequently, too, the old analysis is employed. In either event, the result in some cases is decisions difficult to defend. There is need for a total abandonment of the old terminology and for a consistent restatement of the law of contracts on the basis of the analysis now generally accepted and in its terminology.

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