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PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

CONTRACT

An agreement between two or more competent parties in which an offer is made and accepted, and each party benefits. The agreement can be formal, informal, written, oral or just plain understood. Some contracts are required to be in writing in order to be enforced. (2) An agreement between two or more parties which creates obligations to do or not do the specific things that are the subject of that agreement. Examples of a contract are a lease, a promissory note, or a rental agreement.

This term, in its more extensive sense, includes every description of agreement, or obligation, whereby one party becomes bound to another to pay a sum of money, or to do or omit to do a certain act; or, a contract is an act which contains a perfect obligation. In its more confined sense, it is an agreement between two or more persons, concerning something to be, done, whereby both parties are hound to each other, or one is bound to the other. Blackstone defines it to be an agreement, upon a sufficient consideration, to do or not to do a particular thing. A contract has also been defined to be a compact between two or more persons.

Contracts are divided into express or implied. An express contract is one where the terms of the agreement are openly uttered and avowed at the time of making, as to pay a stated price for certain goods.

Express contracts are of three sorts: 1. By parol, or in writing, as contradistinguished from specialties. 2. By specialty or under seal. 3. Of record.

A parol contract is defined to be a bargain or voluntary agreement made, either orally or in writing not under seal, upon a good consideration, between two or more persons capable of contracting, to do a lawful act or to omit to do something, the performance whereof is not enjoined by law.

From this definition it appears, that to constitute a sufficient parol agreement, there must be:

1st. The reciprocal or mutual assent of two or more persons competent to contract. Every agreement ought to be so certain and complete, that each party may have an action upon it; and the agreement would be incomplete if either party withheld his assent to any of its terms. The agreement must, in general, be obligatory on both parties, or it binds neither. To this rule there are, however, some exceptions, as in the case of an infant's contract. He may always sue, though he cannot be sued on his contract.

2d. There must be a good and valid consideration, motive or inducement to make the promise upon which a party is charged, for this is of the very essence of a contract under seal and must exist, although the contract be reduced to writing.

3d. There must be a thing to be done, which is not forbidden; or a thing to be omitted, the performance of which is not enjoined by law. A fraudulent or immoral contract, or one contrary to public policy is void.

The second kind of express contracts are specialties, or those which are made under seal, as deeds, bonds, and the like; they are not merely written, but delivered over by the party bound. The solemnity and deliberation with which, on account of the ceremonies to be observed, a deed or bond is presumed to be entered into, attach to it an importance and character which do not belong to a simple contract. In the case of a specially, no consideration is necessary to give it validity, even in a court of equity. When, a contract by specialty has been changed by a parol agreement, the whole of it becomes a parol contract.

The highest kind of express contracts are those of record such as judgments, recognizances of bail, and in England, statutes merchant and staple, and other securities of the same nature, entered into with the intervention of some public authority.

Implied contracts are such as reason and justice dictates, and which, therefore, the law presumes every man undertakes to perform; as if a man employs another to do any business for him or perform any work, the law implies that the former contracted or undertook to pay the latter as much as his labor is worth; or if one takes up goods from a tradesman without any agreement of price, the law concludes that he contracts to pay their value.

Contracts considered in relation to their substance are either commutative or independent, principal or accessory.

Commutative contracts are those in which what is done, given or promised by one party is considered as equivalent to, or in consideration of what is done, given or promised by the other.

Independent contracts are those in which the mutual acts or promises have no relation to each other, either as equivalents or as considerations.

A principal contract is one entered into by both parties, on their accounts, or in the several qualities they assume.

An accessory contract is made for assuring the performance of a prior contract, either by the same parties or by others, such as suretyship, mortgage and pledges.

Contracts, considered in relation to the motive for making them, are either gratuitous or onerous. To be gratuitous the object of a contract must be to benefit the person with whom it is made without any profit or advantage received or promised as a consideration for it. It is not, however, the less gratuitous if it proceed either from gratitude for a benefit before received, or from the hope of receiving one hereafter, although such benefits be of a pecuniary nature. Any thing given or promised as a consideration for the engagement or gift; any service, interest or condition imposed on what is given or promised, although unequal to it in value, makes a contract onerous in its nature.

Considered in relation to their effects, contracts are either certain or hazardous. A contract is certain when the thing to be done is supposed to depend on the will of the party or when, in the usual course of events, it must happen in the manner stipulated. It is hazardous when the performance of that which is one of its objects depends on an uncertain event.

Some divide contracts under the five following heads:

Into reciprocal and unilateral.

Into consensual or those which are formed by the mere consent of the parties such as sale, hiring and mandate; and those in which it is necessary there should be something more than mere consent, such as loan of money, deposit or pledge, which from their nature require a delivery of the thing (rei) whence they are called real contracts.

Into first contracts of mutual interest which are such as are entered into for the reciprocal interest and utility of each of the parties, as sales exchange, partnership and the like.

Contracts of beneficence which are those by which only one of the contracting parties is benefited, as loans, deposit and mandate.

Mixed contracts, which are those by which one of the parties confers a benefit on the other, receiving something of inferior value in return, such as a donation subject to a charge,

Into principal and accessory.

Into those which are subjected by the civil law to certain rules and forms, and those which ate regulated by mere natural justice.

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