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g to one； but not to the other requirement； would be holding him to do a substantially different thing from what he promised； and because a promise to take one and the same thing answering to both requirements is therefore contradictory in a substantial matter。 It has been seen that the law does not go on any merely logical ground； and does not hold that every slight repugnancy will make a contract even voidable。 But； on the other hand； when the repugnancy is between terms which are both essential； it is fatal to the very existence of the contract。 How then do we decide whether a given term is essential？ Surely the best way of finding out is by seeing how the parties have dealt with it。 For want of any expression on their part we may refer to the speech and dealings of every day； /2/ and say that； if its absence would make the subject…matter a different thing； its presence is essential to the existence of the agreement。 But the parties may agree that anything； however trifling； shall be essential； as well ＇331＇ as that anything； however important； shall not be； and if that essential is part of the contract description of a specific thing which is also identified by reference to the senses； how can there be a contract in its absence any more than if the thing is in popular speech different in kind from its description？ The qualities that make sameness or difference of kind for the purposes of a contract are not determined by Agassiz or Darwin； or by the public at large； but by the will of the parties； which decides that for their purposes the characteristics insisted on are such and such。 /1/1 Now； if this be true； what evidence can there be that a certain requirement is essential； that without it the subject…matter will be different in kind from the description； better than that one party has required and the other given a warranty of its presence？ Yet the contract description of the specific vessel as now in the port of Amsterdam； although held to be an implied warranty； does not seem to have been regarded as making the contract repugnant and void； but only as giving the defendant the option of avoiding it。 /2/ Even an express warranty of quality in sales does not have this effect； and in England； indeed； it does not allow the purchaser to rescind in case of breach。 On this last point the law of Massachusetts is different。
The explanation has been offered of the English doctrine with regard to sales； that； when the title has passed； the purchaser has already had some benefit from the contract； and therefore cannot wholly replace the seller in statu quo； as must be done when a contract is rescinded。 /3/ This reasoning ＇332＇ seems doubtful； even to show that the contract is not voidable； but has no bearing on the argument that it is void。 For if the contract
is void； the title does not pass。
It might be said that there is no repugnancy in the charterer's promise； because he only promises to load a certain ship； and that the words 〃now in the port of Amsterdam〃 are merely matter of history when the time for loading comes； and no part of the description of the vessel which he promised to load。 But the moment those words are decided to be essential they become part of the description； and the promise is to load a certain vessel which is named the Martaban； and which was in the port of Amsterdam at the date of the contract。 So interpreted； it is repugnant。
Probably the true solution is to be found in practical considerations。 At any rate； the fact is that the law has established three degrees in the effect of repugnancy。 If one of the repugnant terms is wholly insignificant； it is simply disregarded； or at most will only found a claim for damages。 The law would be loath to hold a contract void for repugnancy in present terms； when if the same terms were only promised a failure of one of them would not warrant a refusal to perform on the other side。 If； on the other hand； both are of the extremest importance； so that to enforce the rest of the promise or bargain without one of them would not merely deprive one party of a stipulated incident； but would force a substantially different bargain on him； the promise will be void。 There is an intermediate class of cases where it is left to the disappointed party to decide。 But as the lines between the three are of this vague kind； it is not surprising that they have been differently drawn in different jurisdictions。
＇333＇ The examples which have been given of undertakings for a present state of facts have been confined to those touching the present condition of the subject… matter of the contract。 Of course there is no such limit to the scope of their employment。 A contract may warrant the existence of other facts as well； and examples of this kind probably might be found or imagined where it would be clear that the only effect of the warranty was to attach a condition to the contract； in favor of the other side； and where the question would be avoided whether there was not something more than a condition；a repugnancy which prevented the formation of any contract at all。 But the preceding illustrations are enough for the present purpose。
We may now pass from undertakings that certain facts are true at the time of making the contract； to undertakings that certain facts shall be true at some later time；that is； to promises properly so called。 The question is when performance of the promise on one side is a condition to the obligation of the contract on the other。 In practice； this question is apt to be treated as identical with another； which； as has been shown earlier； is a distinct point； namely； when performance on one side is a condition of the right to call for performance on the other。 It is of course conceivable that a promise should be limited to the case of performance of the things promised on the other side； and yet that a failure of the latter should not warrant a rescission of the contract。 Wherever one party has already received a substantial benefit under a contract of a kind which cannot be restored； it is too late to rescind； however important a breach may be committed later by the other side。 Yet he may be ＇334＇ excused from going farther。 Suppose a contract is made for a month's labor； ten dollars to be paid down； not to be recovered except in case of rescission for the laborer's fault； and thirty dollars at the end of the month。 If the laborer should wrongfully stop work at the end of a fortnight； I do not suppose that the contract could be rescinded； and that the ten dollars could be recovered as money had and received； /1/ but； on the other hand； the employer would not be bound to pay the thirty dollars； and of course he could sue for damages on the contract。 /2/
But； for the most part； a breach of promise which discharges the promisee from further performance on his side will also warrant rescission； so that no great harm is done by the popular confusion of the two questions。 Where the promise to perform on one side is limited to the case of performance on the other； the contract is generally conditioned on it also。 In what follows； I shall take up the cases which I wish to notice without stopping to consider whether the contract was in a strict sense