POTHIER AND THE THREE DOTS
| Date | 01 January 1957 |
| DOI | http://doi.org/10.1111/j.1468-2230.1957.tb00423.x |
| Published date | 01 January 1957 |
| Author | J. C. Smith,J. A. C. Thomas |
POTHIER AND THE THREE DOTS
SINCE
Fry
J.
first quoted Pothier’s now celebrated observations
on
mistake as to the person in
Smith
v.
Wheatcroft
that
con-
troversial passage has been set out
in extenso
on
no
fewer than
eleven occasions by judges and text-writers,2 as well as being
referred to in several other places. The quotation, in every case
but included three dots, indicating that a passage had been
left out in the middle.
On
the most recent appearance of the
quotation in this
Revim
the writers were seized by an over-
powering desire to know the nature of the passage, universally
regarded as
so
lacking in importance as to be represented by three
dots. And
so
they came to
open
the pages of Pothier for the
first time. This is,
no
doubt, a shameful confession, but they
are consoled by the belief that they are
not
alone in their failure
to resort to the
ipsisdrna verba
of the French jurist.
Their research produced interesting results. The reference
given by all the writers who have quoted Pothier is simply
cc
Trait6
des Obligations, section
19,”
or
cc
s.
19,”
or
‘(
8
19.”
It
was
therefore somewhat surprising to find that Pothier’s treatise is
divided into Parts which are sub-divided into Chapters5 that the
Chapters are divided into Sections which are sub-divided into
Articles; and that the Articles are divided into
88.
So
that all
the references are quite meaningless, and there is
no
section
19
or
8
19
in the book.
In
addition to this method of classification,
however, the paragraphs are numbered consecutively throughout
the book and it was
soon
discovered that the correct reference
was to
paragraph
19,
which
occurs
in Part
I,
Chapter
I,
Section
I,
Article
111,
0
1,
or,
to use the abbreviations given at the tops
of the pages,
P.I.
c.1.
s.1.
Art.
III.
81.
But this was only the beginning. The next surprise was the
discovery that the translation by William David Evans
(1806),
the only translation which the writers have been able to find in
1
(1878)
9
Ch.D.
2a9,
230.
*
Gordon
v.
Street
[1899]
!2
Q.B.
841,
C.A.,
per
A.
L.
Smith
L.J.;
Phillip8
v.
Brook8
[lQlQ]
2
K.B.
243
per
Horridge
J.;
Lake
v.
Simmns
[1927]
A.C.
487, 501
per
Vieoount Haldane;
Sowler
v.
Potter
[.1940]
1
K.B.
271, 274
er
Tucker
J.;
Cheehire
&
Bifoot,
Law
of
Contract
(3rd
ed.,
195%), 197;
5
enjamin
on
Sale
(8th ed.,
l950),
100;
F
,
specific Performance
(6th ed.,
lBaO),
0
980;
Salmond
&
Winfield,
Law ofPCo?z~acts
(1927) 187;
Goodhart,
“Mistake
(1941) 57
L.Q.R.
228,
235;
Goodhert and Hamsq:, Undiecloeed Prhcipala
in
Contract,”
4
C.L.J.
320,
343;
J.
B.
Wilson, Identity
in
Contract and the Pothier Fallacy
“
(1954)
3
Phillips
v.
Brooke,
where Horridge
J.
read only the first half of the usual
quotation.
to Identityjn the
Law
of Contract
17
M.L.R.
615,
aao.
88
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