(1) An agreement, for instance, may not create an obligation, and therefore, in reason, may not result in a contract, because its effect is concluded as soon as the parties have expressed their common assent. Such are conveyances of land without covenants, gifts, and sales of chattels for cash, with immediate delivery, and without warranty. The agreement of the parties effects at once a transfer of rights in rem, and leaves no obligation subsisting between them. Such agreements are called "executed contracts," but they create no outstanding contractual obligation, and it is at least questionable whether they can properly be termed contracts.19 It is otherwise if the conveyance is with covenants annexed, or if the sale is on future delivery, or on credit, or with a warranty.
(2) Again, an agreement may create obligations only incidentally or remotely, and therefore not constitute a contract; the essence of contract being in the fact that the direct purpose of the agreement is to create an obligation. Such agreements have the characteristic just alluded to of effecting their main object immediately upon the expression of the intention of the parties, but they differ from simple conveyances and gifts, not only in creating outstanding obligations between the parties, but sometimes in providing for the coming into existence of other obligations, and those not between the original parties to the agreement. Marriage, for instance, sometimes erroneously called a contract, effects a change of status from the moment the consent of the parties is expressed before a competent authority. At the same time it creates obligations between the parties which are incidental to the transaction, and to the immediate objects of the expression of consent or agreement. So, also, a settlement of property in trust for persons unborn effects much more than the mere conveyance of a legal estate to the trustee. It imposes on him incidental obligations, some of which may not come into existence for a long time. It creates possibilities of obligation between him and persons who are not yet in existence. These obligations are the result of agreement, but they are not contract.20
19 There Is the highest authority for speaking of conveyances of land without covenants, gifts, and sales of goods for cash, with immediate delivery, and without warranty, as executed contracts. 2 Bl. Comm. 443; 1 Story, Cont. (4th Ed.) § 22; Fletcher v. Peck, 6 Cranch, 87, 3 L. Ed. 162. The propriety, however, of calling such agreements contracts has, with reason, been questioned. Anson, Cont. 3. It is of the essence of contract, as a legal conception, that it shall contemplate and create a right in personam; that it shall impose an obligation on one of the parties to do or forbear from doing some act. An agreement by which a person binds himself to convey land would therefore be a contract; but how can a conveyance be called a contract? It creates no obligation, but, at the very moment the parties agree, the agreement is carried out. To the effect that an executed gift is not a contract, see Wheeler v. Glasgow, 97 Ala. 700, 11 South. 758. See '•Con-tracts," Dec. Dig. (Key-No.) § 6; Cent. Dig. § S; "Vendor and Purchaser," Dec. Dig. (Key-No.) § 53; Cent. Dig. § 84.