CONTRACT
334
CONTRACT
to give me five pieces of gold. I agree, or I promise.
Tlie similarity may be noted of this to the modern
form for administering an affidavit or for taking the
acknowledgment of a written legal instrument. A
literal contract was perfected by a written acknow-
ledgment of debt and was used chiefly in the instance
of a loan of money. Consensual contracts were those
of which sale would be an example, which might be
perfected by consent, and to which no particular form
was essential (Mackenzie, "Studies in Roman Law",
Edinburgh and London, 1898, 211, 215-256). In
the English law the principal di\'ision of contracts is
into those by writing under seal (called specialties),
and those known as simple contracts; and there are also
"contracts by matter of record", such as a recogni-
zance or judgment by confession, contracts in court,
which need no further description. Simple contracts
include all contracts written, but not under seal or of
record, and all verbal contracts.
A person may contract in person or by an agent. "The tendency of modern times", remarks Holland (op. cit., 118), "is towards the fullest recognition of the principles proclaimed in the canon law, potest quis per ahum quod potest facere per se ipsum, qui facit per alium est perinde ac si faciat per se ipsum ", i. e. one may do through another whatever one is free to do by himself, or an act done through another is equivalent to an act done by oneself.
Requisites of Contract. — According to Roman law, such a contract as that of sale required a justa causa, namely, a good legal reason (Leage, " Roman Private Law," London, 1906, 1.31; Poste, " Gaii Institu- tiones", 4th ed., Oxford, 1904, 138). According to English law, simple contracts require a valuable con- sideration, in like manner as by Roman law there was needed a justa causa. By that law, informal con- tracts which had no justa causa were ineffectual (Poste, op. cit., 334). Stipulations irregular in form were termed nuda pacta, i. e. mere agreements, to which the ancient law (Leage, op. cit., p. 273, 308) attached no obligation. The translator of Pothier cites a civil-law authority to the effect that the Roman jurisprudence let some engagements rest on the mere integrity of the parties who contracted them, thinking it more conducive to the cultivation of virtue to leave some things to the good faith and probity of mankind than to subject everything to the compulsory authority of the law (Pothier, "A Trea- tise on the Law of Obligations", tr. Evans, Philadel- phia, 1826, Appendix, 11, 17).
As the civil-law jurist admitted the moral obliga- tion of good faith and probity, so an eminent English judge concedes that "by the law of nature" every man ought to fulfil his engagements. But it is equally true", he continues, "that the law of this country sup- plies no means nor affords any remedy to compel the performance of any agreement made without suffi- cient consideration." "Such agreement", he adds, "is nudum pactum ex quo non oritur actio", a mere agree- ment giving rise to no action at law, the learned judge conceding that this imderstanding of the maxim may (as it certainly does) differ from its sense in the Roman law (J. W. Smith. "The Law of Contracts", 7th Amer. ed., Philadelphia, 1885, 103). A moral consideration has been said to be "nothing in law" (Smith, op. cit., 203). The moral obligation of a con- tract is of " an imperfect kind ' ', to quote an eminent American jurist, "addressed to the conscience of the parties under the solemn admonitions of accountabil- ity to the Supreme Being" (Story, "Commentaries on the Constitution of the United States", 5th ed., Bos- ton, 1891, Section 13S0), but not to an earthly court of justice. With these doctrines of the Roman and of the English law we may compart- the Scotch law, ac- cording to which no consideration is essential to a legal obligation, "an obligation uncl(>rtaken deliber- ately though gratuitously being binding". "This",
adds Mackenzie (op. cit., 233) "is in conformity with
the canon law by which every paction produceth
action et omne verhum de ore fideli cadit in debitum",
i. e. every word of a faithful man is equivalent to a debt.
In the Roman law fulfilment of the legal solemnities of the verbal contract was deemed to indicate such "serious intention of contracting a valid and eft'ectual obligation" (Pothier, op. cit.. Appendix II) as to dis- pense with proof of any justa causa (Poste, op. cit., 334). In the English law it is not any verbal formality, but the solemnity of writing and sealing (Potliier, ibid.) which dispenses with proof of that valuable consideration in modern English law analogous to the old Roman justa causa, and, as a general proposition, essential to the vahdity of simple contracts, although in the exceptional instance of negotiable paper alwaj's presumed, and in favour of certain holders conclu- sively (Smith, op. cit., 181). This consideration is described generally as " the matter accepted or agreed upon as the equivalent for which the promise is made" (Leage, "Principles of the Law of Contracts", 4th ed., London, 1902, 425). And one promise would be a legal consideration for another (Smith's " Lead- ing Cases", 9th Amer. ed., Philadelphia, 1889, 302). But the English law infers what a man chooses to bargain for to be of some value to him, and therefore does not allow the adequacy of the consid- eration to be inquired into (Pollock, op. cit., 193). The consideration must, however, " be of some value in contemplation of law". A promise, for instance, to abstain from doing what the promisor has no right to do, is a promise of no value, and therefore no con- sideration for a contract (Smith, op. cit.,. 181). No obligation can by English law result from an agree- ment " immoral in a legal sense ". By this is meant "not only that it is morally wrong, but that according to the common understanding of reasonable men it would be a scandal for a court of justice to treat it as lawful or indifferent, though it may not come within any positive prohibition or penalty" (Pollock, op. cit., 410). The civil-law authority, Pothier, instances a promise by an officer to pay a soldier for fighting " a soldier of another regiment". If the officer pay, he has no legal claim for recovery of this consideration given and received for a WTongful act, and, on the other hand, the soldier, if he fight before recei\'ing the agreed consideration, acquires no legal claim for it against the officer (Pothier, op. cit., 23). No one is tmder a legal duty to fulfil a promise to do an act| opposed to the policy of the law (Smith, op. cit., 241, 243). But there are not wanting instances of con- tracts opposed to the policy of the law which yet conflict with no moral law (Smith, op. cit., 213).
A contract induced by what in law is deemed to be fraud may be rescinded at the election of the party defrauded. But "general fraudulent conduct", or "general dishonesty of purpose", or mere "intention and design to deceive" is not sufficient tmless these evil acts and qualities have been coiinected with a particular transaction, were the ground on which it took place, and gave rise to the con- tract (Smith, op. cit., 248, editor's note). In the ill! stance of a sale, the seller was, by the Roman civ law, held to an implied warranty that the thing sol was "free from such defects as made it unfit for tl use for which it was intended" (Mackenzie, op. cii 236). By the English law there is, if the thing f sold for a fair price and be at the time of sale in tl possession of the seller, an implied warranty of titl but of ouality there is no implied warranty, except t to food sold for domestic u.sc (Kent, op. cit., Et 478). " The WTiters of the moral law, " observes Chaa cellor Kent, "hold it to be the duty of the seUer to dis close the defects which are within hi.s knowledge But the common law is not qiiite so strict If the ae fects in the article sold be open equally to the observa tion of both parties, the law does not require th
