CONTRACT. 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. 1 Pow. Contr. 6; Civ. Code of Lo. art. 1754; Code Civ. 1101; Poth.
Oblig. pt. i. c. 1, S. 1, Sec. 1; Blackstone, (2 Comm. 442,) 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. 6 Cranch, R. 136.
2. 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. 2 Bl. Com. 443.
3. Express contracts are of three sorts 1. BI parol, or in writing, as
contradistinguished from specialties. 2. By specialty or under seal. 3. Of
record.
4.-1. 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. 1 Com. Contr. 2 Chit. Contr. 2.
5. 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. Peake's R. 227; 3 T. R. 653; 1 B. & A. 681 1 Pick. R. 278. 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. Stra. 937. See other instances; 6 East, 307; 3 Taunt. 169; 5
Taunt. 788; 3 B. & C. 232.
6.-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. 7 T. R. 350, note (a); 2 Bl. Coin. 444. See
this Dict. Consideration; Fonb. Tr. Eq. 335, n. (a) Chit. Bills. 68.
7.-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
Chit. Contr. 215, 217, 222: and it is also void if contrary to a statute.
Id. 228 to 250; 1 Binn. 118; 4 Dall. 298 4 Yeates, 24, 84; 6 Binn. 321; 4
Serg & Rawle, 159; 4 Dall. 269; 1 Binn. 110 2 Browne's R. 48. As to
contracts which are void for want of a compliance with the statutes of
frauds, see Frauds, Statute of.
8.-2. 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. Plowd. 308; 7 T. R. 477; 4 B. & A. 652; 3 T. R. 438; 3
Bingh. 111, 112; 1 Fonb. Eq, 342, note When, a contract by specialty has
been changed by a parol agreement, the whole of it becomes a parol contract.
2 Watts, 451; 9 Pick. 298; see 13 Wend. 71.
9.-3. 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, cutered into with the
intervention of some public authority. 2 Bl. Com. 465. See Authentic Facts.
10. 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; see Quantum merwit; or if one takes up goods from a
tradesman, without any agreement of price, the law concludes that he
contracts to pay their value. 2 Bl. Com. 443. See Quantum valebant;
Assumpsit. Com. Dig. Action upon the case upon assumpsit, A 1; Id.
Agreement.
11. By the laws of Louisiana, when considered as to the obligation of
the parties, contracts are either unilateral or reciprocal. When the party
to whom the engagement is made, makes no express agreement on his part, the
contract is called unilateral, even in cases where the law attaches certain
obligations to his acceptance. Civ. Code of Lo. art. 1758. A loan for use,
and a loan of money, are of this kind. Poth. Ob. P. 1, c. 1, s. 1, art. 2. A
reciprocal contract is where the parties expressly enter into mutual
engagements such as sale, hire, and the like. Id.
12. Contracts, considered in relation to their substance, are either
commutative or independent, principal or accessory.
13. 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. Civ. Code of Lo. art. 1761.
14. Independent contracts are those in which the mutual acts or
promises have no relation to each other, either as equivalents or as
considerations. Id. art. 1762.
15. A principal contract is one entered into by both parties, on their
accounts, or in the several qualities they assume.
16. 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. Id. art. 1764. Poth. Obl. p. 1, c. 1, s. 1, art. 2,
n. 14.
17. 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. Id. art. 1766. 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. Id.
art. 1767.
18. 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. Id. art. 1769.
19. Pothier, in his excellent treatise on Obligations, p. 1, c. 1, s. 1,
art. 2, divides contracts under the five following heads:
20.-1. Into reciprocal and unilateral.
21.-2. 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. See Real Contracts.
22.-3. 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.
23.-2d. Contracts of beneficence, which are those by which only one of
the contracting parties is benefited, as loans, deposit and mandate. 3d.
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,
24.-4. Into principal and accessory.
25.-5. Into those which are subjected by the civil law to certain
rules and forms, and those which ate regulated by mere natural justice. See,
generally, as to contracts, Bouv. Inst. Index, h.t.; Chitty on Contracts;
Comyn on Contracts; Newland on Contracts; Com. Dig. titles Abatement, E 12,
F 8; Admiralty, E 10, 11; Action upon the Case upon Assumpsit; Agreement;
Bargain and Sale; Baron and Feme, Q; Condition; Dett, A 8, 9; Enfant, B 5;
Idiot, D 1 Merchant, E 1; Pleader, 2 W, 11, 43; Trade D 3; War, B 2; Bac.
Abr. tit. Agreement; Id. Assumpsit; Condition; Obligation; Vin. Abr.
Condition; Contracts and Agreements; Covenants; Vendor, Vendee; Supp. to
Ves. jr. vol. 2, p. 260, 295, 376, 441; Yelv. 47; 4 Ves. jr., 497, 671;
Archb. Civ. Pl. 22; Code Civ. L. 3, tit. 3 to 18; Pothier's Tr. of
Obligations Sugden on Vendors and Purchasers; Story's excellent treatise on
Bailments; Jones on Bailments; Toullier, Droit Civil Francais, tomes 6 et 7;
Ham. Parties to Actions, Ch. 1; Chit. Pr. Index, h.t.; and the articles
Agreement; Apportionment; Appropriation; Assent; Assignment; Assumpsit;
Attestation; Bailment; Bargain and sale; Bidder; Bilateral contract; Bill of
Exchange; Buyer; Commodate; Condition; Consensual contract; Conjunctive;
Consummation; Construction; Contracto of benevolence; Covenant; Cumulative
contracts; Debt; Deed; Delegation. Delivery; Discharge Of a contract;
Disjunctive; Equity of a redemption; Exchange; Guaranty; Impairing the
obligation of contracts; Insurance; Interested contracts; Item;
Misrepresentation; Mortgage; Mixed contract; Negociorum gestor; Novation;
Obligation; Pactum constitutae, pecuniae; Partners; Partnership; Pledge;
Promise; Purchaser; Quasi contract; Representation; Sale; Seller;
Settlement; Simple contract; Synallagmatic contract; Subrogation; Title;
Unilateral contract.
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