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 BI .
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.
- l. 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, wbicb 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 whicb, 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. 17GI.
14.
Independent contracts are those in which the mutual acts or proniises
have no relation to each other, either as ecluivalents 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, deposite 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; Representatian;
Sale; Seller; Settlement; Simple contract; Synallagmatic contract;
Subrogation; Title; Unilateral contract.
CONTRACT or BENEVOLENCE,
Civil law. One which is made for the benefit of only one of the
contracting parties; such as loan for use, deposit, and mandate. Poth.
Obl. n. 12. See Contracts.
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