Allegoria, or the Erased Face of the Offeree

The second example is taken from the law of contract. It concerns the much remarked anomaly that while contracts are the result of consensus and thus depend upon communication between the parties, an acceptance is binding once put in the post. The postal or mailbox rule is generally accredited in Anglo-American case law with an early nineteenth-century origin in the decision of the King's Bench in Adams v Lindsell .^[63] In doctrinal terms, the rule in that case was justified by reference to the imposition of a necessarily arbitrary cutoff point in relation to communication. If such a point of no return were not imposed, then in the view of the court "no contract could ever be completed by post. For if the defendants were not bound by their offer when accepted by the plaintiffs till the answer was received, then the plaintiffs ought not to be bound till after they had received the notification that the defendants had received their answer and assented to it. And so it might go on ad infinitum ."^[64] Such an arbitrary drawing of the line, a version of what Bachelard would have termed nemesis complex,^[65] the desire for finality, has been viewed by most commentators at best as an ill-conceived concession to the needs of business certainty and at worst as irrational by virtue of being inconsistent with the consensual principles of contract formation. Explanations for the rule are various and will be briefly reviewed. If nothing else, the absence of any plausible, let alone satisfactory, justification for the postal rule generates continued academic debate.^[66] Most commentators accept that in its original terms, covering letters and subsequently the telegraph, the rule—with the exception of the per incuriam decision of the Massachusetts supreme court in McCullough v Eagle Insurance and the historically misconceived decision in Rhode Island Tool Co. v United States^[67] —is here to stay.^[68] Justifications for the rule become secondary and less consequential save in the area of the potential adoption or disavowal of the rule in relation to more recent technologies.

[63] Adams v Lindsell [1818] 1 B. & Ald. 681; Henthorn v Fraser [1892] 2 Ch. 27; Holwell Securities v Hughes [1974] 1 WLR 155.

[64] Adams v Lindsell at 683.

[65] Gaston Bachelard, The Psychoanalysis of Fire (New York: Harper and Row, 1974) at 43–45.

[66] Simon Gardiner, "Trashing with Trollope: A Deconstruction of the Postal Rules in Contract" (1992) 12 Oxford Journal of Legal Studies 170; also Goodrich, "Contractions"; Costas Douzinas and Ronnie Warrington, "Posting the Law: Social Contracts and the Postal Rule's Grammatology" (1991) 4 International Journal for the Semiotics of Law 115.

[67] Respectively McCullough v Eagle Insurance Co. [1822] 18 Mass. (1 Pick.) 278; and Rhode Island Tool Co. v United States , 128 F. Supp. 417 (Ct. Cl. 1955).

[68] G. Treitel, The Law of Contract (London: Sweet and Maxwell, 1991) at 24; P. S. Atiyah, An Introduction to the Law of Contract (Oxford: Clarendon Press, 1989) at 77; Brinkibon Ltd. v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH [1983] 2 AC 34.

In brief doctrinal terms, the mailbox rule is an exception to the requirement that the formation of a contract conform to the voluntary assumption of obligations by the parties. For the contract to be adequately consensual, for there to be consensus ad idem , or a meeting of minds at the same time, it is necessary for the substance of both offer and agreement to be brought to the notice of the relevant party either by explicit words or by conduct or behavior that can be deemed to have the same communicative effect. What is required of both words or actions is that they come to the knowledge or notice of the other party.^[69] That a posted acceptance escapes this rule is illogical, but it is presented in the case law as either an aspect of the law of agency or a feature of the fiction of continuing assent. With regard to the issue of agency, the principle is adapted from the Roman law of sale. Once the letter or message is placed in the hands of the authorized messenger, then the master or sender is deemed to have entrusted the messenger with the communication and it is reasonable to rely upon the message as communicated by the bare messenger or agent. Thus in the American case law, much has revolved around a line drawn at the point where the message leaves the control of the sender. In Lucas v Western Union Telegraph Co. in 1906, the American authority for viewing the moment of completion as being the moment that the acceptance takes effect is rehearsed as being because "thereafter the acceptor has no right to the letter and cannot withdraw it from the mails. Even if he should succeed in doing so the withdrawal will not invalidate the contract entered into."^[70] In English case law a similar view, predicated upon a species of control compulsion, is also evident from early in the history of the rule: "The acceptor in posting the letter, has . . . put it out of his control and done an extraneous act which clenches the matter, and shows beyond all doubt that each side is bound. How then can a casualty in the post, whether resulting in delay, or in non-delivery unbind the parties or unmake the contract? . . . If he [the offeror] trusts to the post he trusts to a means of communication which, as a rule, does not fail."^[71] The additional justification, adding conceptual legitimacy to the empirical observation of the general trustworthiness of the postal service, was derived from the earlier decision of Cooke v Oxley which designated a mailed offer as a continuing offer and found, upon the fiction that at each moment of transmission the offeror renewed his consent and that the assent of the offeree consequently constituted an irreversible meeting of minds.^[72]

[69] Thus, classically, Dickinson v Dodds [1876] 2 ChD 463.

[70] 131 Iowa 669, 109 N.W. 191. Confirming, inter alia, Tuttle v Iowa State Traveling Men's Association, 132 Iowa 652, 104 N.W. 1131.

[71] Household Fire and Carriage Accident Insurance Co. Ltd. v Grant [1879] 4 Ex. D. 216.

[72] Cooke v Oxley [1790] Times Reports 653, discussed in Morison v Thoelke , 155 So.d 889 [1963]. This explanation of the rule is also rehearsed by Allan Farnsworth, "Meaning in the Law of Contracts" (1967) 76 Yale Law Journal 939.

The tenor of textbook explanations of the postal rule is either mutely resigned or straightforwardly cynical. For Corbin, to take an exemplary exposition, the explanation is empirical: "A better explanation of the existing rule seems to be that in such cases the mailing of a letter has long been a customary and expected way of accepting the offer. It is ordinary business usage," to which Corbin adds that while there may be inconvenience occasionally engendered, "we need a definite and uniform rule as to this."^[73] For Llewellyn, the question of the justification of the anomalous rule was best addressed pragmatically: "The vital reason for throwing the hardship of an odd delayed or lost letter upon the offeror remains this: the offeree is already relying, with the best reason in the world, on the deal being on; the offeror is only holding things open; and, in view of the efficiency of communication facilities, we can protect the offeree in all these deals at the price of hardship on offerors in very few of them."^[74] The judicial reiteration of these explanations adds little more than a sense of habitual caution or institutional faith. As recently as 1983, Lord Fraser summarized the view of the majority of the House of Lords on the distinction between telex and post in no more compelling logical terms than the observation that the rule "seems to have worked without leading to serious difficulty or complaint from the business community."^[75] In Holwell Securities Ltd. v Hughes the arbitrariness of the rule or at least the apparent idiosyncracy of its continued usage was such as to prompt Lord Justice Lawton to assert a species of the indeterminacy thesis, a vague but doubtless deeply felt limitation to the rule, namely that it was not to be applied where its application would lead to absurdity: "The rule does not apply if, having regard to all the circumstances, including the nature of the subject matter under consideration, the negotiating parties cannot have intended that there should be a binding agreement until the party accepting the offer had in fact communicated acceptance."^[76] Underlying such a view is most probably a simple sense of historical incomprehension: why continue to apply an archaic and anomalous rule when it seems to lack any logical necessity even at the time of its inception? As one court famously remarked, in the course of a failed attempt to overturn the rule, "to apply an outmoded formula is not only unjust, it runs counter to the whole stream of human experience. It is like insisting on an oxcart as the official means of transportation in the age of the automobile. The cart served a useful purpose in its day, but is now a museum piece. . . . The rea-

[73] Arthur Linton Corbin, Corbin on Contracts (St. Paul: West Publishing, 1950), s. 78.

[74] Llewellyn, "Our Case-Law of Contract: Offer and Acceptance," pt. 2 (1939) 48 Yale Law Journal 779, 795.

[75] Brinkibon Ltd. at 39.

[76] Holwell Securities at 159.

son for the rule [has] disappeared."^[77] Both in the textbooks and in the courts, however, the balance of habit and reaction, of tradition and deference to precedent, tips the scales imperceptibly toward continued adherence to the rule, toward what Nusbaum, an American, termed "repetition compulsion."

Attempts to find some more rational explanation for the postal rule range from the historical through the literary to the psychoanalytic.^[78] Starting with the latter, an article in the mid-1930s by Professor Nusbaum suggested that criticism of the postal rule and of the decision in Adams v Lindsell in particular had been extensive and was "sufficient" to discredit the rule. Nonetheless "they [the judges] stick to it in England as well as in this country. An attempt should be ventured to apply some 'psychoanalysis' to their actions and to look for the 'complex' behind them."^[79] While Nusbaum offers neither diagnosis nor therapy for the Anglo-American judiciary, his suggestion has considerable merit. Why repeat a discredited decision, or at least a rule that even the judiciary has acknowledged to be arbitrary, if not for some other reason that is either repressed, forgotten, or inadmissible? Nusbaum concentrates on the idiosyncracy of the rule and adverts to its lack of historical or comparative justification. His purpose is in large measure simply to show (arguably inaccurately) that civil law systems historically have not had such a rule and that there is good reason for that absence.

A recent commentator, Simon Gardiner, elliptically takes up Nusbaum's challenge and offers a "deconstruction" of the postal rules in terms of their historical and social context of origin. The context, he argues rather unconvincingly, is that of the nineteenth-century reform of the post office: the post office monopoly, standardized rates, prepayment of postage, and the cutting of letter boxes in doors all merged in the public imagination to equate posting with the certainty of delivery: "The thesis, then, is that the decisions of the 1840s were influenced not so much by internal considerations about offer and acceptance in contract as by way of regarding

[77] Rhode Island Tool Co.

[78] See additionally A. Nusbaum, "Comparative Aspects of the Anglo-American Offer-and-Acceptance Doctrine" (1936) 33 Columbia Law Review 920; P. Winfield, "Some Aspects of Offer and Acceptance" (1939) 55 Law Quarterly Review 499: M. Sharp, "Reflections on Contract" (1966) 33 University of Chicago Law Review 211.

[79] Nusbaum, "Offer-Acceptance Doctrine" at 922. That Nusbaum, in a paper that originated as a seminar presentation to Karl Llewellyn's contracts class, refers to psychoanalysis should not come as a surprise, granted the influence of Freud upon the realists in the 1930s. For a discussion of this point see particularly Neil Duxbury, "Jerome Frank and the Legacy of Legal Realism" (1991) 18 Journal of Law and Society 175. See also Caudill, "Freud and Critical Legal Studies" at 662–667. The major realist discussion of psychoanalysis and law is probably Frank, Law and the Modern Mind .

the phenomena of posting as such."^[80] Using Trollope's novels as a literary pre-text for reformulating the logic of the postal rule, the deconstruction ends by confirming the repressed or at least lost external cause of the rule: "The postal acceptance . . . thus stands alone as an exception to a general requirement for full communication. . . . [The] rule may be regarded as something of a museum piece."^[81] The fiction or "artificiality"^[82] whereby the act of posting is treated by simulation "as if" it were communication of acceptance is here viewed as anomalous or as "compulsive," and so arbitrary if not necessarily evil. Gardiner also recognizes that like repression itself the postal rule is likely to return: "It is worth noticing, however, that there is a chance of history repeating itself."^[83]

Where Gardiner introduces history and literature to provide an indication of the "real reason"^[84] for the rule, it is arguable that his analysis of the rule does not take the logic of deconstruction—or Nusbaum's suggested psychoanalysis—far enough. As other contributors to the debate over the rule have pointed out, the postal exception may well be more significant than the standard rule.^[85] While the rule of full communication suggests a linguistically unrealistic ideology of consensus, the postal rule introduces the objective possibility of the nonarrival of the letter and faces the consequences of that failure of delivery or noncommunication which constantly threatens to undermine the subjective theory of contracts. The narrative of the nonarriving letter would be similar to Poe's popular story of the purloined letter: the repetition or the "sticking" of the postal rule would serve to recollect or even to cure a general theory of contractual communication that represses the mechanisms, the grammatological but also linguistic means whereby the letter, the ipsissima verba of the contract, circulates or finds its destination.^[86] The rule of full communication would be part of the blindness of law, the exception would be conceptually anterior and liberatory: "The exception comes before the rule in order to put the

[80] Gardiner, "Trashing with Trollope" at 184. A more plausible version of this argument in relation to post and politics is made in Geoffrey Bennington, "Postal Politics and the Institution of the Nation," in Homi Bhabba (ed.), Nation and Narration (Routledge: London, 1989).

[81] Gardiner, "Trashing with Trollope" at 192.

[82] Holwell Securities at 157 (per Russell LJ).

[83] Gardiner, "Trashing with Trollope" at 192.

[84] Ibid. at 176.

[85] See Douzinas and Warrington, "Posting the Law" at 123–125; Goodrich, Languages of Law at 150–152.

[86] The "Purloined Letter" is much discussed within psychoanalysis and also increasingly within law: Jacques Lacan, "Seminar on the Purloined Letter" (1972) 48 Yale French Studies 39; Jacques Derrida, "Le Facteur de la Vérité," in Derrida, The Post Card; S. Felman, Jacques Lacan and the Adventure of Insight (Cambridge, Mass.: Harvard University Press, 1987), ch. 2; Caudill, "Lacan and Legal Language" at 200 ff.

rule into circulation. The post comes before the prior, the letter before the phone, endless circulation before the wealth of tradition, the postal relay before the fixity of meaning and the order of politics and law."^[87] What one commentator views as being an inappropriate extension of the ideology of the metaphor of "meeting of minds," namely that the offer is made continuously as it travels to the offeree,^[88] is represented deconstructively as the precondition for the possibility of contract as such. Where psychoanalysis would assert the priority of the postal rule because it privileged the signifier over the signified, deconstruction would support the postal rule on the basis of a similar inversion of the hierarchical opposition of writing to speech: the written is anterior to the spoken, the post thus represents the "destinal of Being," and the postal rule in consequence would be the emblem of the discipline of contract as a whole.^[89]

There is support in the history of contract, and particularly in the early formbooks such as West's Symbolaeography, to support both the psychoanalytic and the deconstructive readings adverted to above.^[90] The earliest forms of contract were written obligations adopted and adapted from precedent writings provided by means of "the [notarial] trade of the making of evidence, and terms thereof, which as they be most ancient, so without doubt are they the surest, and [of] most vailable effect, and a greater danger it is for those not exactly learned in the laws to alter or vary from the same."^[91] The contract, symbolon, creed or record, is in legal principle immemorial and immutable: the language of law is in Coke's terms vocabula artis, an "unknown grammar,"^[92] which circulates perpetually within its own professional genre. The language of legal record, as the "language of memorials" was destined more for posterity than for secular receipt.^[93] The written obligation, assumpsit, or consensual bond circulated in the external language of durable legal forms. The contract is here a trace or vestige of a structure, of a prior and external agreement, of a code or language of law which precedes and survives its momentary intentional or temporal use. The postal rule, which recognizes precisely the priority of the signifier, of

[87] Douzinas and Warrington, "Posting the Law" at 124. The argument comes directly from G. C. Cheshire and C. H. S. Fifoot, Law of Contract (London: Butterworth, 1945, 1991 ed.) at 53: "[The rule] is perhaps less surprising if we attend to the history of the matter. Adams v Lindsell was the first genuine offer and acceptance case in English law and, in 1818 there was no rule that acceptance must be communicated. As so often happens in English law, the exception is historically anterior to the rule."

[88] This argument is suggested by Farnsworth, "Meaning in the Law of Contracts" at 945.

[89] Derrida, The Post Card at 65.

[90] West, First Part of Symbolaeography, particularly fol. A 8 a.

[91] T. Phayr, A New Boke of Presidentes, in manner of a Register (London: Whytchurche, 1544) at fol. ii a.

[92] Coke, The First Part of the Institutes of the Laws of England at fol. C 6 a.

[93] Doderidge, English Lawyer, at 51.

the letter, over the sense or content, directly expresses the logic of common law history. It would be presumptuous in the extreme to suppose that there exists any single explanation—historical, literary, philosophical, or psychoanalytic—to this rule. Too much has condensed around the continued metaphor or, properly, allegory, of the post and the rule of posting. That the fiction continues to return, that letters bind without being read, that the law treats writing "as if" it were speech, in short the allegorical narrative of contract by letters, necessarily suggests an other scene or unconscious place of judgment.

In historical terms, the postal rule can be traced to the Digest, which in 18.1.1.2 rules that "sale is a contract of the law of nations and so is concluded by simple agreement; it can thus be contracted by parties not present together, through messengers, or by letters [per nuntium et per literas ]." In the reception, as Gordley has shown, the glossatorial interpretation of this passage frequently addressed the question of when the contract by "bare messenger" or letter was complete. Accursius, in the Glossa Ordinaria, thus takes the view that if the offeree's letter or message of acceptance has been sent, an attempted revocation by the seller before receipt of the acceptance would not be effective:^[94] "To Petrus, Cinus, and Bartolus the obvious difficulty with this position is that the seller becomes bound to a contract to which he did not consent at the moment it was formed. The issue in Accursius's mind, however, was not whether the seller had consented but the moment at which a communication is effective."^[95] In terms of the postreception development of civil law, the issue raised by correspondence was that of the status of messengers or other agents in communication between absent parties. The question became that of whether a simple or bare messenger could represent a continuing condition or consent to the transaction. The letter, in Alciatus's definition, was a silent messenger (tacitus nuntius ) and so out of the power of the sender it communicated in its own right. By this logic, the offeree was entitled to rely upon the continuing validity of the offer.^[96] Gordley mentions one other significant circumstance in the Corpus Iuris Civilis in which letters are effective even if not received. It is that by Code 5 176 a marriage can be dissolved by a document that never reaches the other spouse.^[97] This last example will prove to be of the utmost importance.

The glossatorial reception of the law of sale has an indirect impact upon

[94] Gloss to D 18112 (et per literas ), discussed in James Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford: Clarendon Press, 1991) at 45–46.

[95] Gordley, Modern Contract Doctrine at 46.

[96] Alciatus, De Notitia Dignitatem at 190.

[97] Gordley, Modern Contract Doctrine at 46.

English law.^[98] Historical accounts of the development of modern contract doctrine make it clear that the elaboration of indigenous rules governing assumpsit and covenant was as significant as was the earlier inheritance of Roman law.^[99] Although it is evident, not least from Gordley's discussion, that the common law of contract had significant Roman borrowings and further that nineteenth-century developments were borrowed almost entirely from civil law,^[100] the most significant, yet least discussed, area of reception of contract doctrine was in the law on "spousals" or marriage contracts. In premodern English law, the use of the term "contract" was often synonymous with marriage, and it was in relation to the law of spousals that many of the doctrines later developed as part of the modern law of contract were first developed. In particular, rules relating to capacity, to duress, to consideration, to offer and acceptance in praesentia and in absentia, to present and future intent, and to the plea of non est factum all had their earliest development in relation to the law of marriage.^[101] It should also be emphasized that the law of marriage was subject to the jurisdiction of ecclesiastical courts and judges trained in civil law, and it is that Roman inheritance that the common lawyers admitted subsequently into English law.

The specific point to be made is simple and surprising. The postal rule, the allegory of the privileged offeree, is the allegory of the law's somewhat limited protection of women in the formation of spousals contracts. Henry Swinburne provides the most succinct annotation of the law governing spousals contracted inter absentes, by messenger or by letter. His analysis begins with a relatively complicated discussion of the theory of the formation of spousals. The contract is to be inferred from words or from manifested intentions: "What are words but the messengers of men's minds? And wherefore serve tongues, but to express men's meanings?"^[102] The word is already, in this analysis, a species of letter, a symbol of intent that can, however, be corrected or referred to its precedent cause, the intention of the author or sender, for if

[98] On the position of Roman law in England during the early reception, see F. de Zulueta and P. Stein, The Teaching of Roman Law in England around 1200 (London: Selden Society, 1990). Bracton, De Legibus, vol. II at 62–65 and 283–290, evidences a clear knowledge of glossatorial discussion of the Digest, on gifts, contracts, and obligations.

[99] See particularly A. W. B. Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Oxford: Clarendon Press, 1987).

[100] See particularly, A. W. B. Simpson, "Innovation in Nineteenth Century Contract Law" (1977) 91 Law Quarterly Review 247; Gordley, Modern Contract Doctrine at 161–214.

[101] I shall concentrate here upon Henry Swinburne, A Treatise of Spousals, or Matrimonial Contracts (London: Browne, 1686, 1711 ed.); Godolphin, Repertorium Canonicum ; Anonymous, Baron and Feme ; Wood, An Institute .

[102] Swinburne, Treatise of Spousals at 63.

the Parties did intend to contract matrimony, then although the words import no more than spousals de futuro [i.e., engagement], the contract is no less matrimony; but when the meaning doth appear, then, howsoever the Rude and Vulgar sort do often abuse their terms, and speak improperly, we must be directed by the [rule which says] we must not otherwise depart from the signification of words, but in case it be manifest, that the speaker meant otherwise.^[103]

With the stated exception of a manifest dissonance between word and intention, the meaning of the utterance and of its sending is to be construed by law and not by reference either to illocution or subjective states. The analysis of the contract made inter absentes thus begins by taking up the glossatorial distinction between proctor and messenger and, following Alciatus, defines the messenger as without warrant or authority but "imployed only about the expedition of a bare fact, as the delivery of a meer message, or a sole postage of a letter."^[104] It is thus the instrument, the symbol, messenger, or letter that is the object of analysis: between whom can the letter legitimately circulate, who can send and who can receive these messages? The question concerns the circulation of the "deed," obligation, or fact, the movement of the signifier and not of the signified. It is a question initially of whether the woman has the capacity to utilize a particular form of acceptance. The question Swinburne addresses next is therefore that of "whether the woman may contract matrimony by a special messenger or letters, as well as the man?"^[105] Deciding that by canon law she can in principle, Swinburne is then faced with the question, "what if the party to whom the message or letter importing consent of matrimony, being delivered, do immediately upon the receipt thereof express the like consent, whether is the contract hereby finished?"^[106] The answer is that at the instant of responding to the messenger or letter, "there is mutual agreement at one instant . . . because the party which did first consent is still presumed to continue and persevere in the same mind, until the time of the others consent." In short, the contract is "perfect" or finished the moment that the woman to whom the offer of marriage was sent expresses consent. The offeror cannot, in other words, revoke the offer between the time of consent and the time of receipt of consent. The manifest fiction cited by Swinburne relates to the offerors' continued offer, idem est non esse et non apparere, which is to say that not to be and not to appear is all one in the construction of law: if the revocation has not been received it is taken not to exist. Underlying this figure of consent is the relation of man to

[103] Ibid. at 63–64.

[104] Ibid. at 178.

[105] Ibid. at 180.

[106] Ibid. at 181.

woman. It is the woman that benefits from the fiction of continued assent or continuing offer, it is the woman who is protected by the "artificial" or fictive operation of the postal rule. If in later common law it seems anomalous to protect the offeree, this is only because of the erasure of the face of the offeree—it has been forgotten that it was a woman who put a letter of acceptance in the post.

The question of the image and of gender lurks unrecognized in the background of the early development of the modern law of contract. They are certainly not the only unseen influences, but it should be noted that it is not only the postal rule that survives as a memory of contracting women. The bulk of rules governing what is now termed the "policing of the bargain" had their early operation developed around the regulation of marriage contracts. It is beyond the scope of the present argument to examine the rules of contract that develop around domestic relations and primarily concern the wife's lack of will and so of capacity,^[107] but the unconscious memory of marriage contracts can be seen in the judicial use of hypotheticals drawn from the law of spousals to explain the rules of offer and acceptance. What if a soldier on leave from the front offers marriage by post just before returning to the front? What if a man shouts a proposal of marriage across a river and the offeree's answer is drowned out by a passing steamboat? Baron Barmwell, in British and American Telegraph Co. v Colson,^[108] thus asks "if a man proposed to a woman and the woman was to consult her friends and let him know, would it be enough if she wrote and posted a letter which never reached him?" The answer that Lord Bramwell offers is of less significance than the continued presence of the female offeree.^[109] The example is not insignificant nor merely hypothetical, it recollects an institutional history, an unconscious structure within which it would be ethically absurd to allow the man to escape his duties and dishonorable in the extreme to leave a woman in suspense or unprotected. The spiritual exemplar of contract had always been that of marriage. In ecclesiastical law the order of marriage ran from that of the church to Christ, that of the priest to the church, that of the Christian to the creed, that of woman to man. The hierarchical order of marriages was not only a symptom of the necessary permanence of the contracted institution, it was also a sign—a symbol or credo—of an order of communication, of the places of communication in a dialogue in which the sovereign, father, parent, priest, or male suitor or proposer would ask a question or make an offer to which

[107] On which see Anonymous, Baron and Feme at 4–6, 214–217. Wood, An Institute at 96–103. For interesting discussion in the case law, see Copland v Pyatt, Trinity Term, 6 Car. 1 Roll 687, 79 ER 814. For discussion of the political implications of these rules, see C. Pateman, The Sexual Contract (Cambridge: Polity Press, 1988).

[108] British and American Telegraph Co. v Colson [1871] LR 6 Exch 108 at 118.

[109] The example is recited by Lawton LJ in Holwell Securities .

the offeree could only say yes or no. The offeree in this model of contract is powerless in the sense of being brought to speech in a formulaic place, in being subject to no more than an elective rite. If the law recognized the minimal duty of protecting the offeree's election, it should not be supposed that this granted the woman offeree any very great or very real right.

In place of the simple anomaly of the postal rule it is possible to offer an account and explanation of the rule that is both more poetic and more sensitive to its political circumstance. In place of the ideal speech situation, or indeed some variant theory of the rational discourse of law, the historical and analytic reconstruction of the postal rule tells a more complicated and less optimistic story. The postal rule always potentially binds the offeror to a contract of which they are not aware. It binds the parties objectively and imposes a fiction of consent upon what is always potentially a failed communication. At one level it can simply be observed that the rule is a historical residue, a relic whereby the law protects the feminine gender at the moment of its civil death, the point of its entry into an irreversible subjection to the husband. The postal rule, in protecting the feminine offeree, is itself ironically an exception to the general rule of law, which is that the married woman or "feme covert" has no contractual capacity whatsoever, for husband and wife are one person. In common law the married woman was sub potestate viri, under the control or in the law of the husband,^[110] while the unmarried woman was for a considerable portion of time likely to be in patria potestas, or some form of guardianship or wardship.^[111] The protection of the woman offered by the postal rule should thus serve to recollect the inequality of the contracting parties and the "civil death" that the marriage contract represented for the feminine offeree.^[112]

The argument from the postal rule can be taken somewhat further. Far from simply evidencing the possible failure at the heart of all communication, the postal rule indicates the inequality of communication and offers one potential explanation of the failures of legal meaning. The legal recognition of the rights of the offeree should not hide the nature of the contract to which the offeree is destined to submit. While it is true that the law offered a minimal protection to the woman through recognizing and enforcing premarital contracts or spousals, such that, for example, in Synge v Synge the Queen's Bench enforced a premarital promise of disposition of property by the husband, the general rule was to the opposite effect.^[113]

[110] Bracton, De Legibus at 36.

[111] Glanvill, Tractatus de Legibus at 59.

[112] See Anonymous, The Lawes Resolutions at 2–4. It might also be added that the consent of the woman to the offer of marriage was only a minor aspect of a much broader network of legal relations. Ultimate consent to marriage lay with the father, whose consent also brought with it the property (maritagium ) that would pass with the marriage itself.

[113] Synge v Synge [1894] 1 QB 466. See, for a similar principle, Hammersley v De Biel (1845) XII Clark and Finlay 46; 8 ER 1312 at 1327: "If a party holds out inducements to another to celebrate a marriage, and holds them out deliberately and plainly, and the other party consents, and celebrates the marriage in consequence of them, if he had good reason to expect that it was intended that he should have the benefit of the proposal which was so held out, a Court of Equity will take care that he [sic] is not disappointed, and will give effect to the proposal." The decision is in many respects more liberal than that arrived at in current state law in New York, see Morone v Morone , 50 N.Y.2d. 481, 429 N.Y.S.2d. 592, 413 N.E.2d 1154 (1980).

Mary Astell, writing in the late seventeenth century and considerably before the decision in Balfour v Balfour , confirmed the modern contractual incapacity of the wife^[114] and cogently and proleptically observed that "covenants between husband and wife, like laws in an arbitrary government, are of little force, the will of the sovereign is all in all. . . . Thus men happily sign articles relating to property and goods but then retract them, because being absolute master, she and all the grants he makes her are in his power."^[115] The model of communication offered by the postal rule and affirmed by the legal incapacity of the wife is one of an explicitly hierarchical and predetermined series of enunciative positions. The slave or the wife or the offeree can communicate, they have an animus or will (voluntas ), but the law will only recognize their speech or writing within the preestablished terms of a licit hierarchy of transmission. While the postal rule can be used to indicate that there are indeed circumstances under which the woman or the subordinate can communicate and bind in law, it is equally indicative of the powerlessness of the feminine offeree after the contract has been made. It allows us to observe that the woman is granted a final request, but it does not fit easily into any model of communicative rationality. It offers rather a glimpse of the other scene of communication, a vision of speech and of writing by position, a bureaucracy of intentions, a repression rather than a poetics of transmission. In strict historical and doctrinal terms, it has to be reiterated that the model of legal communication to which the postal rule forms a limited exception is one that denies the validity of domestic contracts, that refuses to grant legal status to promises defined as belonging to the private sphere, and that frequently does not recognize the juridical personality of the woman in the context of the home. It should be reiterated also that the doctrinal context of the postal rule can only be reconstructed through the recognition of the unequal legal background of the parties communicating by post. The postal

[114] Balfour v Balfour [1919] 2 KB 571, at 579: "In respect of these promises each house is a domain into which the King's writ does not seek to run, and to which his officers do not seek to be admitted." The reason is also, of course, that there would be a conflict of sovereigns and of prerogative rights. Regia potestas would vie with patria potestas .

[115] Astell, Some Reflections upon Marriage at 38.

rule makes legal sense only if it is analyzed in terms of inequality of speech situations and, specifically, the difference and inequality of genders.