CERTAINTY, UNCERTAINTY - Contracts.
In matters of obligation, a thing is certain when
its essence, quality, and quantity are described and
distinctly set forth. It is uncertain, when the description
is not that of one individual object, but designates
only the kind. Certainty is the mother of repose,
and therefore the law aims at certainty.
If a contract be so vague in its terms that its meaning
cannot be certainly collected and the statute of frauds
preclude the admissibility of parol evidence to clear
up the difficulty, or parol evidence cannot supply
the defect, then neither at law nor in equity can
effect be given to it.
It is a maxim of law, that, that is certain which
may be made certain; certum est quod certum reddi
potest Co.; for example, when a man sells the oil
he has in his store at so much a gallon, although
there is uncertainty as to the quantity of oil, yet
inasmuch as it can be ascertained, the maxim applies,
and the sale is good generally.
Pleading. By certainty is understood a clear and
distinct statement of the facts which constitute the
cause of action, or ground of defence, so that they
may be understood by the party who is to answer them,
by the jury who are to ascertain the truth of the
allegations, and by the court who are to give the
judgment. Certainty has been stated to be of three
sorts namely: 1. certainty to a common intent 2. to
a certain intent in general; and, 3. to a certain
intent in every particular.
- 1. Certainty to a common intent is simply a rule
of construction. It occurs when words are used which
will bear a natural sense, and also an artificial
one, or one to be made out by argument or inference.
Upon the ground of this rule the natural sense of
words is adopted, without addition.
- 2. Certainty to a certain intent in general is
a greater degree of certainty than the last, and means
what upon a fair and reasonable construction may be
called certain without recurring to possible facts
which do not appear; and is what is required in declarations,
replications, and indictments, in the charge or accusation,
and in returns to writs of mandamus. By some of which
authorities it would seem, certainty to a common intent
is sufficient in a declaration.
- 3. The third degree of certainty is that which
precludes all argument, inference, or presumption
against the party pleading, and is that technical
accuracy which is not liable to the most subtle and
scrupulous objections, so that it is not merely a
rule of construction, but of addition; for where this
certainty is necessary the party must not only state
the facts of his case in the most precise way, but
add to them such as show that they are not to be controverted,
and, as it were, anticipate the case of his adversary.
