CONTRACT. 



435 



of a stipulation became continually more lax, ap- 

 proaching nearer to a simple promise, and at last, 

 amounted to nothing more than this, that he who 

 wanted to bind another (stipulator) asked him, in a 

 form of his own choosing, " Do you promise to give 

 me such a thing?" and the other, who was to 

 be bound, answered, " I promise it." It is ob- 

 vious that in this way, every simple promise (pac- 

 tum) could be made actionable, and that the altera- 

 tion, in modern times, in the law of some parts of 

 Europe, which admits of an action upon every com- 

 pact, amounts, in feet, only to this, that the form of a 

 stipulation has become even more lax, so that there is 

 no longer a necessity for the claimant (promissarius) 

 to commence with his question, but the compact can 

 as well begin with the declaration of the party under 

 obligation (promissor). These forms of contracts 

 are, in their essential parts, settled ; and the legal 

 relation, together wth the action arising from it, 

 has a fixed name (contractus nominati). 



But other relations, also, as exchanges of things 

 and services, service for service, gift for gift, gift ior 

 service, service for gift (do tit des,facio ut facias, do 

 ut facias, facio ut des), gave rise to rights and obli- 

 gations, but in such diversified ways, that an appro- 

 priate form of action could be framed only ftom the 

 statement of each particular case (actio in factum 

 pr<escriptis verbis) ; and there were, accordingly, no 

 technical terms adapted to such variously combined 

 relations. Hence arose the contractus innominati, 

 which were considered as real contracts so far only 

 that the actual performance of one party entitled 

 him to an action ; and, even in this case, there was 

 not an absolute obligation on the other party to the 

 performance of his part of the contract; but, in 

 most cases, simply the duty of restoring what had 

 been received. But the modern law creates here 

 (though not without dispute) a perfect duty to per- 

 form the very thing promised. 



Finally, the Roman law attributed the effect of 

 actionable obligation' even to some partial promises 

 and agreements ( pacta) ; not only to those which 

 were added as appendices to other real contracts 

 (pacta adjecta), but also to some of a different kind. 

 These were either declared obligatory by a formal 

 law, or were admitted as grounds of action by the 

 pretor (pacta legitima and prcetoria). Most of the 

 technical designations of these are indeed new, yet 

 the ancients had several, as, for instance, re, consen- 

 su, verbis, literis, contrahitur obligatio, &C. In this 

 way donations, promises of dowry, promises of in- 

 terest, acknowledgments of debt, &c., were made 

 actionable. It is always implied in the idea of a 

 contract, that the real cause of its obligation is 

 founded on some particular rational object of the 

 party who promises (causa ciuilis), and that mere 

 promises and agreements are not binding. Even 

 stipulations, which have no ground, or an unlawful 

 one (nuUam aut injustam causam), are valid, indeed, 

 with regard to their form, but are open to the objec- 

 tion of intrinsic groundlessness, except when they 

 are donations. 



With these views were also connected certain divi- 

 sions of these legal relations, and of the actions aris- 

 ing from them, according to which, in some cases, 

 the object of the obligation was strictly enforced 

 (actiones stricti juris); but, in others, the liability 

 could be settled only by the decree depending upon 

 all the circumstances of the special action before the 

 court (actiones bonce fidei). Other divisions refer 

 to the relation of the parties, as, in some of them, 

 the obligation is only on one side, as to return the 

 thing received in lending (contractus unilaterales) 

 and, in others, there are reciprocal obligations, as in 

 a sale, a partnership (contractus bilaterales ;. or they 



concern the subject of the contracts, whether relat- 

 ing to property or to some other object. To the 

 conditions necessary for the formation of a contract 

 belongs the consent of the contracting parties. Ac- 

 cordingly, when this is wanting, either because the 

 parties were not capable of taking upon themselves 

 the obligation (as minors, madmen, prodigals), or 

 because the contract was founded on an error (an 

 innocent error on the side of the party making the 

 mistake, or one occasioned by the deceit of the other 

 party), or when the engagement was extorted by 

 force and fear, there can be no valid contract. 



To contracts may also be added conditions, which 

 either delay or dissolve them, and also precise de- 

 terminations of time, place, and object (modus), which 

 coincide, at times, with the condition. A contract 

 must be possible and legal, else it is without force. 

 No one can be obliged to undertake what is impos- 

 sible or decidedly immoral (causa turpis). Accord- 

 ing to the Roman law, it is a matter of dispute, 

 whether an obligation to do something or to leave 

 something undone gives a right to compel a specific 

 performance, or whether it gives merely a claim to 

 indemnification. The English and French laws have 

 adopted the latter doctrine (toute obligation de faire 

 ou de ne pas faire se resoud en dommages et interets], 



Obligations resembling express contracts arise if 

 one person does something for another, without the 

 knowledge and desire of the latter; so that the 

 latter is bound to give a recompense for what has 

 been thus beneficially done for him (obligatio quasi ex 

 contractu). In this case, there is no consent existing, 

 neither is it supposed, but the consent could not have 

 been refused, or it was not necessary. Such rela- 

 tions resembling express contracts, arise in cases of 

 guardianship, between guardian and ward, by the 

 receipt of money fora non-existing debt by mistake, 

 the amount of which ought to be restored ; so by 

 a beneficial performance of some business for another, 

 without any actual commission from him. where the 

 circumstances raise a presumption of obligation. 



Thus far the present article refers to the general 

 theory of contracts, founded either upon natural jus- 

 tice or the principles of the civil and Roman law. A 

 short account will now be added of the nature and 

 obligation of contracts by the common law which 

 regulates this subject in the jurisprudence of Bri- 

 tain and America. 



The original basis of the common law, as to con- 

 tracts, was, without doubt the civil or Roman law ; 

 but it has undergone some modifications in its incor- 

 poration into our jurisprudence. A contract maybe 

 defined, in the common law, to be an agreement 

 made in one form, between parties capable of con- 

 tracting, for a legal object or purpose, and upon a 

 sufficient consideration. It must be an agreement or 

 mutual bargain, voluntary, and without force or 

 fraud ; and therefore, it includes an assent given 

 bona fide. The notion of an assent includes a 

 physical and moral power of assenting, and the de- 

 liberate and free use of this power. And this leads 

 us to the consideration of the next point, which is, 

 that it must be between parties capable of contract- 

 ing. Upon principles of universal law, an infant, 

 having no discretion or moral power of perception, 

 cannot make a contract ; nor can a person who is 

 insane or mad ; nor an idiot, or person labouring 

 under such mental debility or such natural defects as 

 prevent a just exercise of reason. The common law 

 recognizes these principles, and therefore it treats as 

 nullities all contracts entered into by such persons ; 

 it treats in like manner contracts made by aged and 

 imbecile men, whose understanding has become so 

 weak and inefficient that they are liable to imposition , 

 and cannot act with a reasonable discretion. In 

 2 K t 



