1-2. Contract Defined.
5. Concurrence of Agreement and Obligation.
1. A contract, in its broadest sense, is an agreement whereby one or more of the parties acquire a right, in rem or in personam, in relation to some person, thing, act, or forbearance. It may be, in its inception:
(a) Executory; that is, where an obligation is assumed by one or both parties to do or to forbear from doing some act. The rights acquired are rights in personam.
(b) Executed; that is, where everything is done at the time of agreement, and no obligation is assumed, as in the case of a conveyance of land without covenants, or a sale and immediate delivery of goods for cash and without warranty.1 Executory contracts when fully performed are also said to be executed.
1 The propriety of calling such an agreement a contract has been questioned. Post, p. 6, note 19.
Clark Cont.(Sd Ed.) - 1
2. A contract in its narrower, and more proper, sense is an executory contract. It is the result of the concurrence of agreement and obligation, and may be defined as an agreement enforceable at law, made between two or more persons, by which rights are acquired by one or more to acts or forbearances on the part of the other or others.2
It has been said that "a contract becomes executed when all is done that its terms require to be performed. Until that situation is attained the contract is executory."3 When we speak of contracts we generally mean executory contracts, and it is of this kind of contract principally that this work is to treat. A contract in this sense results from the combination of the two ideas of "agreement" and "obligation." It is that form of agreement, or meeting of minds, which directly contemplates and creates an obligation; and the contractual obligation is that form of obligation which springs directly from agreement. It is necessary, therefore, to understand clearly what is meant by the terms "agreement" and "obligation," and how they may or may not concur so as to create a contract.
2The following are some of the definitions given In the books:
"An agreement enforceable at law, made between two or more persons, by which rights are acquired by one or more to acts or forbearances on the part of the other or others." Anson, Cont. (Sth Ed.) 9.
"Every agreement and promise enforceable by law is a contract" Pol. Cont. 1.
"An agreement, upon sufficient consideration, to do or not to do a particular thing." Bl. Comm. 442; 2 Kent, Comm. 449.
"An agreement between two or more parties for the doing or the not doing of some particular thing." 1 Pars. Cont. 6.
"A contract or agreement not under seal may be defined to be an engagement entered into between two or more persons, whereby, in consideration of something done or to be done by the party or parties on one side, the party or parties on the other promise to do or omit to do some act" Chit Cont 7.
"A contract is a promise from one or more persons to another or others, either made in fact or created by law, to do or refrain from some lawful thing; being also under the seal of the promisor, or being reduced to a judicial record, or being accompanied by a valid consideration, or being executed and not being in a form forbidden or declared inadequate by law." Bish. Cont § 22. See "Contracts," Dec. Dig. (Key-No.) § 1; Cent. Dig. § 1.
3Leadbetter v. Hawley, 59 Or. 422. 117 Pac. 289, 505. Bee "Contracts," Dec. Dig. (Key-No.) § 6; Cent. Dig. § 8.