— 
| what is impossible, or decidedly immoral. 
essential character of contracts in the strictest 
sense, is founded on the circumstance that such 
a legal relation is necessary for the most simple 
social intercourse, and imposes, according to its 
nature, certain duties. The most simple of these 
relations arise from a positive act, as the transfer 
of a thing to be returned, in which the object 
and extent of the obligation are determined by 
the real benefit conferred. Such a contract arises 
from delivering a thing, with or without pay ; as, 
for instance, a deposit or a pawn. A determinate 
form of agreement, however, is not always neces- 
sary. Civil intercourse allows another kind of 
contracts, in which the simple consent of the 
parties gives obligation to agreements, so that 
they may constitute the ground of an action. 
Such, according to the Roman law, is sale, hire 
(as well as the lending of a thing as services done 
for money), partnership, an accepted commission, 
and the contract for a fee farm rent. To the 
conditions necessary for the formation of a con- 
tract belongs the consent of the contracting par- 
ties. Accordingly, when this is wanting, either 
because the parties were not capable of taking 
upon themselves the obligation (as minors, mad- 
men, 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 con- 
tracts may also be added conditions, which 
either delay or dissolve them, and also precise 
determinations of time, place, and object, which 
coincide, at times, with the condition. A con- 
tract must be possible and legal, else it is with- 
out force. No one can be obliged to undertake 
Ac- 
cording to the Roman law, it is a matter of dis- 
pute, whether an obligation to do something or 
to leave something undone gives a right to com- 
pel a specific performance, or whether it gives 
merely a claim to indemnification. The English 
and French laws have adopted the latter doc- 
trine. 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. 
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 re- 
lations, resembling express contracts, arise in 
cases of guardianship, between guardian and 
ward, by the receipt of money for a 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 gen- 
eral theory of contracts, founded either upon na- 
tural justice or the principles of the civil and 
897 
Roman law. A short account will now be added 
of the nature and obligation of contracts by the 
common law; that is, by the law which regulates 
this subject in the jurisprudence of England and 
Scotland. The original basis of the common law, 
as to contracts, was, without doubt, the civil or 
Roman law; but it has undergone some modifi- 
cations in its incorporation into our jurispru- 
dence. A contract may be defined, in the com- 
mon law, to be an agreement made in one form, 
between parties capable of contracting, for a legal 
object or purpose, and upon a sufficient consid- 
eration. 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 deliberate 
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 con- 
tracting. 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 recognises these prin- 
ciples, and therefore it treats as nullities all con- 
tracts 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 
respect to persons who enter into contracts in a 
state of intoxication, the old law, with a view to 
deter men from such practices, did not hold the 
contracts void, so that the party might set them 
aside at his own suit, upon the ground that no | 
man should be allowed to stultify himself, or 
allege his own vice to excuse his non-performance 
of a contract. But this principle, if it is now 
acted upon at all, is received with great modifi- 
cations; and, if there be any undue advantage 
taken of the party’s situation, he will be relieved. 
The common law indeed seems originally to have 
disabled a party who was insane from avoiding, 
after the recovery of his reason, any contract | 
made during his insanity ; partly upon the maxim 
that no man should be permitted to stultify him- 
self, and partly upon the supposed danger, in ad- 
mitting such defences, of overturning deliberate 
and solemn contracts. But his legal representa- 
tives, after his death, were always allowed to 
avoid them; and when he has a guardian ap- 
pointed, the guardian may avoid his contracts in 
a proper suit; so that the doctrine, if it now 
exists (and it has been much questioned), is more 
a matter of form than of substance. In respect 
to who shall be deemed infants or minors, the 
laws of every civilized country have provided a 
certain age, at which persons shall be deemed 
capable of all sorts of contracts, and for all pur- 
poses suc jures. The time differs in different 
CONTRACT. 
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