CONTRACT
333
CONTRACT
iliiii it really is. there will be no true consent, and no
ivMii i.iel. Similarly, if there be a mistake about the
.i.iliin- of the eontract proposed (as, if one party in-
tincls to sell while the other only means to borrow)
llini' is no agreement of wills. Mistake about the
11H ir i|uality of the subject-matter of the contract is
- ir. hl.nta!, not substantial, and in spite of it there
Til i\ be substantial agreement between the parties. Ii. li'iwever, such a mistake has been caused by the
I I ill.! or misrepresentation of the other party to the
' ' ift, and the party deceived would not otherwise
i iitercd into it, it is only fair that the deceived
-iiould be able to protect himself from injury by
"i; from the agreemeiit. Contracts, then, en-
into because of accidental mistake which was
d by the fraud or misrepresentation of the
- party, will be rescindable at the option of the
1 :!i ! y deceived.
I lii> consent of the parties must be deliberate and
III I , for a perfect and grave obligation cannot arise fiiMii consent which is not deliberate or free. Hence «i must .see what the influence of fear is upon the
'ity of a contract. If the fear goes to the length riving one of the parties of the use of reason, nnot, while in that state, give a valid consent, ,....; ihe contract will be null and void. Fear, how- ever, does not ordinarily produce such extreme effects; it leaves a man with the natural use of his reason and capable of consenting or withholding his consent. Even grave fear, then, does not of itself invalidate a contract, but if it is tmjustly caused by the other party to the contract with a view to forcing him who is under its influence to consent, the injured party may withdraw from the contract. Some contracts, such as marriage, thus entered into under the influ- ence of grave fear unjustly caused by the other party to the contract with the intention of compelling con- sent, are made invalid l)y canon law. Some authori- ties even hold that all such contracts are invalid by natural law, but the opinion is at most only probable. A person must have the use of reason in order to give valid consent to a contract, and his contractual ca- pacity must not have been taken away by law. Those who have not yet attained the use of reason, imbe- ciles, and tho.se who are perfectly drunk so that they do not know what they are doing, are incapable of contracting by the law of nature. Minors are to a certain extent restricted in their contractual capacity by English and American law. Practically, their con- tracts are voidable except those for necessaries. Mar- ried women were formerly incapable of entering into a valid contract, but in England since 1882 their dis- ability has been removed, and in most of the .States of the Union the same doctrine begins to prevail. Re- ligious persons are to a greater or le.ss extent, accord- ing as they are imder solemn or simple vows, incapable of entering into a binding contract. Corporations and companies are limited in their contractual capac- ity by their nature or by the articles of association.
The subject-matter of a contract must be definite and certain, it must be possible, and it must be honest. A contract cannot be a bond of iniquity, and so an agreement to commit sin is null and void. Some theologians maintain that when, in execution of a contract, a sinful action has been performed, a right is acquired to receive the price agreed upon. The opin- ion seems at any rate probable. If the contract is not sinful in itself, but voided by positive law, it will be valid until it is set aside by the party interested, as was said above concerning informal contracts. When persons enter into a contract, each party prom- ises to give, tlo, or forbear something in favour of the other. Tlic benefit which thus immediately arises from the contract, and which is the cause of it, is called the conxideration in English law. It is a necessarj- element in a contract, and if it is wanting the contract is null on account of the failure of a necessary condi-
tion in the agreement. The courts of civil law will not
enforce a simple contract unless there lie n v:ilu:ilili'
consideration in it; mere motives of affect ion m- nionil
duty will not suflicc. This rule, however, only .irtccls
legal obligations; it has nothing to do with obligations
in conscience. A valid contract imposes on the con-
tracting parties an obligation of justice to act con-
scientiously according to the terms of the agreement.
They will be bound to perform not only what they
expressly agreed to do, but whatever the law, or
custom, or usage prescribes in the circumstances.
The obligation arising from a contract will cease
when the contract has been executed, when a new
one has been substituted for the old one by the free
consent of the parties, when the parties mutually and
freely withdraw from the contract. When one of the
parties fails in what he promised, the other w-ill, as a
rule, be free. A contract may be concluded not ab-
solutely but conditionally on the happening of some
uncertain and future event. In this case the condi-
tional contract imposes on the parties the obligation
of waiting for the event, and in case it happejis the
contract becomes binding on them without renewal
of consent. On the other hand, a contract is some-
times entered into and begins to bind at once ; but the
parties agree that it shall cease to bind on the happen-
ing of a certain event. This is called a condition sub-
sequent, while the former is a condition precedent.
Corpus Juris canonici, ed. Friedberg (Leipzig, ISSl): Corpus Juris civilis (Leipzig. 1865). Among the canonists Reiffenstuel, Jus canonicum (Rome, 1831\ and among the morahsts Lugo, De Justilid et Jure (Paris, 1869), may be con- sulted. See also Polix>ck and M.mtland, Histon/ of English Law (Cambridge, Eng., 1895). T. SlaTER.
II. In Civil Jurisprudence, a contract has been defined to be " the union of several persons in a co- incident expression of will by which their legal relations are determined" (Holland, "Elements of Jurispru- dence", 10th ed., Oxford and New York, 1906, 209). This " co-incident expression ' ' consists of an agreement and promise enforceable in law, and "on the face of the matter capable of having legal efTects", ".an act in the law ' ' " whereby two or more persons capable of contracting", "of doing acts in the law", "declare their consent as to any act or thing to be done or for- borne by some or one of those persons for the use of the others or other of them" (Pollock, "Principles of Contract", 3rd Amer. ed.. New York, 1906, 58, 1, 2, ■3), the intention implied by the consent being that from the agreement and promise shall arise "duties and rights which can be dealt with by a court of jus- tice" (ibid.). Thus, while every contract is an agree- ment, not every agreement is a contract. A mtitual consent of two persons to walk out together, or to dine together, would be an agreement, and yet not what in jurisprudence is known as a contract. For such consent contemplates the producing of no legal right, or of any duty which is a legal obligation. Sub- ject only to these or similar explanations may be properly adopted the time-honoured definition of contract as understood in English law, a definition commended by Chancellor Kent ("Commentaries on American Law", II, •1-49, note b) for its "neatness and precision", namely, " an agreement of two or more per- sons upon sufficient consideration to do or not to do a particular thing".
Kinds of Contract. — The Roman civil law defined contracts as real (re), verbal (verbis), literal (litteris), or consensual (consensu). A real contract w;is one, such as loan or pledge, which was not perfecteil until something had p!is.sed from one of the parties to the other. A verbal contract (verhorum ohlignlio), or stipvilation, was perfected by a spoken formula. This formula consisted of a question by one of the parties and an ex.actly corresponding answer by the other. Thus: Quinque aurms mihi dure spondcsi' Sjiomleo, or PromiUis? Promitlo, i. e. Dost thou agree (or promise)
