448 HARVARD LAW REVIEW. remains as made, and unaffected by anything the stockbroker may do, until he has actually contracted to buy or to sell the securities. Then, by the performance of what the customer offered to pay for, the customer's offer to pay a commission ripens into a promise to do so. In this way a contract springs into existence binding the customer to pay the fixed commission. This contract is of the unilateral or executed variety. The express and implied terms of an order in the regular form have now been stated. The Taking" of an Order. After an order in the regular form is given to a stockbroker, the next step in the regular way of engaging him is for him to decide whether he will refuse ^ or consent ^ to undertake the express and implied propositions contained in the order to authorize him to con- tract, according to the rules and customs of his Stock Exchange, and to perform in the regular way the contract or contracts he makes to carry out the order. Since the latter is neces- sarily involved in the former, he cannot consent to the one without consenting to the other. If he consents to an order he is said to " take " the order. He is under no legal obligation to take every order given to him and can refuse any order he wants to. He is not bound to communicate his consent or refusal to the customer and can leave the one or the other to be inferred ^ from his con- duct. Since it is very easy, except in clear cases, for error to arise in the making of this inference, the wiser course is for the stock- broker to communicate his consent or refusal to the customer.^ This is practically essential in the case of an intended refusal, for from silence after receiving an order consent rather than refusal will usually be inferred. In communicating his refusal or consent he can express the one or the other in any way he likes. Before consenting to an order the stockbroker should make demand for 1 Where a proposition to confer an authority is made, all that is required to create the relation of principal and agent between the proposer and the person to whom the proposition is made is that the latter should consent to the proposition. His consent need not be necessarily communicated to the proposer, and it may be inferred from his conduct. Mechem on Agency, § io8.
- See note i.
' The practical wisdom of notifying the customer that an order is refused has led some stockbrokers to think they are "bound" to do so, and they act accordingly; but the text states the law correctly, and there does not seem to be any established custom of notifying a customer of the refusal of an order.
