It might be said that there is no repugnancy in the charterer’s promise, because he only promises to load a certain ship, and that the words “now in the port of Amsterdam” are merely matter of history when the time for loading comes, and no part of the description of the vessel which he promised to load.  But the moment those words are decided to be essential they become part of the description, and the promise is to load a certain vessel which is named the Martaban, and which was in the port of Amsterdam at the date of the contract.  So interpreted, it is repugnant.

Probably the true solution is to be found in practical considerations.  At any rate, the fact is that the law has established three degrees in the effect of repugnancy.  If one of the repugnant terms is wholly insignificant, it is simply disregarded, or at most will only found a claim for damages.  The law would be loath to hold a contract void for repugnancy in present terms, when if the same terms were only promised a failure of one of them would not warrant a refusal to perform on the other side.  If, on the other hand, both are of the extremest importance, so that to enforce the rest of the promise or bargain without one of them would not merely deprive one party of a stipulated incident, but would force a substantially different bargain on him, the promise will be void.  There is an intermediate class of cases where it is left to the disappointed party to decide.  But as the lines between the three are of this vague kind, it is not surprising that they have been differently drawn in different jurisdictions.

[333] The examples which have been given of undertakings for a present state of facts have been confined to those touching the present condition of the subject-matter of the contract.  Of course there is no such limit to the scope of their employment.  A contract may warrant the existence of other facts as well, and examples of this kind probably might be found or imagined where it would be clear that the only effect of the warranty was to attach a condition to the contract, in favor of the other side, and where the question would be avoided whether there was not something more than a condition,—­a repugnancy which prevented the formation of any contract at all.  But the preceding illustrations are enough for the present purpose.

We may now pass from undertakings that certain facts are true at the time of making the contract, to undertakings that certain facts shall be true at some later time,—­that is, to promises properly so called.  The question is when performance of the promise on one side is a condition to the obligation of the contract on the other.  In practice, this question is apt to be treated as identical with another, which, as has been shown earlier, is a distinct point; namely, when performance on one side is a condition of the right to call for performance on the other.  It is of course conceivable that a promise should be limited to the case of performance