[316]. Smith v. Hughes, L. R. 6 Q. B. 597.
[317]. In addition to the ease of misrepresentation, unessential error affects any agreement which has been expressly or impliedly made conditional on the existence of the fact erroneously supposed to exist. A contract of sale, for example, is conditional on the present existence of the thing sold; if it is already destroyed, the contract for the purchase of it is void.
[318]. With the exception of contracts under seal and contracts of record, to which the doctrine of consideration is inapplicable.
[319]. Cf. D. 44. 4. 2. 3. Si quis sine causa ab aliquo fuerit stipulatus, deinde ex ea stipulatione experiatur, exceptio utique doli mali ei nocebit. See also D. 12. 7. 1. pr.
[320]. Salmond, Essays in Jurisprudence and Legal History, p. 219.
[321]. The French law as to the cause or consideration of a contract will be found in Pothier, Obligations, sects. 42–46, and Baudry-Lacantinerie, Obligations, sects. 295–327. Whether the English doctrine of consideration is historically connected with the causa of the civil law in a matter of dispute, and there is much to be said on both sides.
[322]. We have already seen that the term liability has also a wider sense, in which it is the correlative of any legal power or liberty, and not merely of the right of action or prosecution vested in a person wronged. Supra, § 77.
[323]. Supra, § 27.
[324]. Supra, § 34.
[325]. Supra, § 78.