CONTRACT

In Civil Law, the term usually applied to such agreements, whether expre or implied, as create, or are intended to create, a legal right, and corresponding liability; such right not attaching to the po e ion of the subject matter of the contract, except in equity, and that indirectly, but subsisting both in equity and law against the contracting party. The conditions e ential to the legal validity of a contract relate either to the competency of the parties, the sufficiency of the consideration or mducement, the nature of the thing contracted for, the fairne of the transaction, or, lastly, to the form of the agreement. And, first, as to the competency of the parties. The party to be sued must have been at the time of the contract of sound mind, and, unle it was for the supply of nece aries, of full age; and if a woman, she must havo been unmarried, subject as to the latter condition to some exceptions established either by local custom or by the doctrines of equity.. Secondly, as to the sufficiency of the consideration on the part of the person suing, — it must have been either future marriage since performed, or money, or something capable of being estimated in money; or some act, whether of performance or abstinence, whereby some undoubted advantage, though not capable of being exactly valued, accrues to the party sued. Thirdly, the act contracted for must be neither contrary to written law, nor to public policy; and it must be beneficial to the party seeking either performance or compensation, or to some one on whose behalf he gave the consideration. Fourthly, there must have been neither fraud (either by concealment or mi tatement) nor compulsion on the part of the plaintiff in obtaining the agreement; and fraudulent acts subsequent to the agreement having reference to it are also sufficient to deprive the guilty party of all right under it. Some circumstances are in equity considered either as conclusive evidence of fraud, or as substantive acts of coercion, which are not strictly of such a nature, and are not so deemed at law. Lastly, as to the form of the agreement. Where it relates to an interest in land of three years' duration or more, or to goods of the value of 10/. or upwards, unle there be earnest or delivery, or where it is an agreement as surety, or where it is upon marriage as a consideration, it must be in writing; though the want of a written instrument may be supplied in equity by partial performance, that is, by acts evidently done in pursuance of the alleged contract. Contracts are sometimes implied either in the whole from the acts of the parties, as from the ordering of goods a contract to pay for them; or in part, and as incidental to the principal agreement, as, in the case of a lease, a contract by the tenant to use fairly and take due care of the thing leased. And at law some obligations not arising in any manner from contract are, as regards the mode of enforcing them, placed on the same footing as those which do arise from contract; the remedy, and not the right, being a imilated by statute. Such are the general requisites to the validity of agreements; but at law the extent of the right and liability arising under them varies according to their form; agreements being there divided into those under seal, which are called agreements by specialty, and those not under seal, which are called simple contract or parol agreements, including not only such as are merely verbal, but such as are written and unsealed. The first sort alone are binding upon the land, and that only when the heir is named; and they po e this farther advantage over agreements by simple contract, that being exr ecuted as the deed of the contracting party, a sufficient consideration will always be implied in their favour, unle an insufficient one be actually stated on the face of them. Again, agreements both by specialty and simple contract are either to pay a sum certain actually stated in the agreement, or a sum uncertain to depend upon the value of the thing received; or they are agreements to perform certain acts. In the first case, the remedy is by action of debt either on bond pr covenant, or upon simple contract, as the case may be. In either of the latter cases the remedy is by action for breach of covenant where the agreement is under seal, or by action of a umpsit where it is by simple contract; the relief given in each of the two last-mentioned sorts of action being compensation in damages for the iiyury accrued from non-performance of the agreement. See Action. The remedy in equity, where there is any, is in all cases alike. — specific performance of the act agreed to be done; and such relief will be given to the same extent and against the same parties, whether the contracting party himself or his real or personal representatives. T 3 [s. 290]