Art. 16.-Blondeau's Institutes of Justinian. 17.-Bancroft's History of the United States. 18.-Morning Post Court Reports. Works on the Conflict of Laws. AMERICAN JURIST. NO. XXXIX. OCTOBER, 1838. ART. I.-LAW OF CONTRACTS. No. 1.-Of the definition and division of contracts; and of the assent of the parties thereto. THE most concise definition of a contract, to be found in the books, is that given by the late chief justice Marshall, in the case of Sturges v. Crowninshield: ' "A contract is an agreement, in which a party undertakes to do, or not to do, a particular thing." Blackstone's definition is-" an agreement, upon sufficient consideration, to do, or not to do, a particular thing.' Most other writers not only include the consideration of a contract in its definition, but also term it a covenant or bargain between two or more parties.* As, however, the word contract, agreement, or bargain, ex vi 1 4 Wheaton, 197. 2 The same learned judge used nearly the same language, in defining an executory contract, in the case of Fletcher v. Peck (6 Cranch, 136): “ An executory contract is one in which a party binds himself to do, or not to do, a particular thing." 32 Black. Comm. 446. Gifts, by the common law, are not regarded as contracts. 2 Kent's Comm. 353 (1st ed.) 4 See Termes de la Ley. (Introd.) &c. VOL. XX.-NO.XXXIX. Jacob's Law Dictionary. Powell on Contracts, 1 termini, imports more than one party, it is slovenly tautology, in a professed definition, to speak of an agreement "between two or more parties." It is like defining a feme covert, by calling her a woman married to a husband, instead of simply denominating her a married woman. The word "covenant," used in many definitions given of a contract, is objectionable. Strictly and technically taken, -as all words, employed in a definition of a subject of science, should be, a covenant is a contract under seal; and is therefore improperly adopted in reference to contracts generically, because it embraces only one specific class of contracts. 3 2 The word "agreement" is most generally used in the older books, to denote what is now more usually termed a contract. The introduction of Contract into the titles of the common law is of modern date. Agreement is "the union of two or more minds in a thing done or to be done."1 In the language of some of the old writers, it is called “a coupling or knitting together of minds." In the case of Wain v. Warlters, the court of King's Bench held, that in a strict, technical sense, the word agreement signifies a contract on consideration. If this notion be correct, Blackstone's definition of a contract is tautological, and Marshall's should therefore be preferred. This technical import, however, of the word agreement, though adopted in New York, New Hampshire and South Carolina, is denied by the supreme courts of Connecticut, Massachusetts, and Maine; and, to say the least, is a very questionable point.* Assuming that the word agreement does not import a 1 Plowd. 17; Comyns' Digest, Agreement, A. We discard the alleged etymology" aggregatio mentium." 2 Shep. Epit. 35 East, 10. 4 See a note to Wain v. Warlters (5 East, 20, Day's Ed.), prepared by the late chief justice Swift, of Connecticut ; - also Packard v. Richardson, 17 Mass. 122; Levy v. Merrill, 4 Greenleaf, 189; King v. Upton, ib. 389; Sage v. Wilcox, 6 Connect, 81; Revised Statutes of Massachusetts, c. 74, § 2. contract on consideration-is Blackstone's definition, or Marshall's, the most accurate? Both these definitions, as well as those of the other writers just cited, include all contracts, the whole genus,-whether of record, under seal, or by parol,-recognizances, grants of land, bonds, promissory notes, or mere oral promises. To the validity of a simple contract (one not under seal) a legal and sufficient consideration is, by the common law, indispensable. But a contract by specialty (or under seal) is valid without consideration; or, which for the present purpose amounts to the same thing, it imports a consideration, which the party is estopped to deny.' A fortiori, is this true of contracts of record. Blackstone's definition, therefore, embraces all simple contracts, and, as to them, is accurate. But as to those contracts, which are valid without a consideration, or import a consideration not to be denied, it is not accurate. Marshall's definition covers this latter class of contracts, and would seem to be sufficiently correct as to the former. For in defining a contract, or any thing else, generically, it is not merely unnecessary, but is illogical and improper, to include all the incidents and qualities that appertain to the subject. Some contracts are required to be written; others need not be reduced to writing. Some require a consideration, or a seal, to support them; others do not. In a general definition, therefore, it is not perceived, why a consideration, which forms a constituent part of only one species of contracts, should be included, in order to render it complete. Why should not writing, and sealing, which are essential to 1 "A consideration is necessary to the validity of all contracts and agreements not under seal," &c. ; 2 Kent's Comm. (1st ed.) 365; 1 Comyn on Contracts, 13. See also Plowd. 308. "A mere voluntary bond, given without any consideration, is good." "A mere want of consideration is not sufficient to avoid a bond." By Parker and Sewall, Js. 2 Mass. 161, 162: By Lord Kenyon, 7 D. & E. 477: By Sir J. Jekyll, 3 P. W. 222. |