27. Contracts are divided into -

(a) Contracts dependent for their validity upon their form alone, or strictly formal contracts. These are:

(1) Contracts of record.

(2) Contracts under seal.

(b) Simple or parol contracts, which may be divided into -

(1) Such as are dependent for their validity both on their form and on the presence of consideration. These are contracts not under seal, nor of record, but which are required by law to be in writing, either with or without a particular form.

1 Anson, Cont. (8th Ed.) 43. The student will do well to read in this connection what Anson says in regard to the history and development of the doctrines of form and consideration. See Anson, Cont. (8th Ed.) pp. 43-48.

(2) Such as are dependent for their validity upon the presence of consideration alone, no form at all being required.

Sir William Anson divides contracts into (a) formal contracts, or contracts dependent for their validity upon their form, under which he classes (1) contracts of record, and(2) contracts under seal; and (b) simple contracts, or contracts which he declares to be dependent for their validity upon the presence of consideration, and under which he classes (1) contracts required by law to be in some form other than under seal, and (2) contracts for which no form is required. This classification, however, has been objected to on the ground "that a contract which the law requires to be in writing, such as a promissory note or a guaranty, is as much dependent for its validity upon the form, and is as truly a formal contract, as one under seal. The latter requires only a writing and a seal, the former a writing and a consideration; but the writing in this instance is just as essential as is the consideration." *

There are two classes of contracts which at common law depend for their validity upon their form alone. These are contracts under seal and contracts of record. They are strictly formal contracts. All other contracts are called "simple" or "parol" contracts, and depend for their validity upon the presence of consideration. Some of these contracts are also required to be in writing, as in the case of bills of exchange and promissory notes, in the case of which a particular form is also required, and contracts within the statute of frauds; so that they depend for their validity upon their form as well as upon the presence of consideration. Simple contracts, not required by the common law or by statute to be in writing, may be made by word of mouth, or by conduct, as we have explained in treating of offer and acceptance. They need no particular form, but depend for their validity upon the presence of consideration alone.

We have, then, three classes of contracts: (a) Contracts of record; (b) contracts under seal; and (c) simple or parol contracts; or, if we classify according as a contract depends for its validity upon form or consideration, or both, we have: (a) Contracts dependent for their validity upon their form alone, or (1) contracts of record, and (2) contracts under seal; (b) simple or parol contracts, which are dependent for their validity both on their form and on the presence of consideration, or contracts required to be in writing, but not under seal nor of record; and (c) simple or parol contracts, for which no form at all is required, and which depend for their validity upon the presence of consideration alone.

2 Brantly, Cont. 33.

All of these contracts, except contracts under seal and contracts of record, are called "simple" or "parol" contracts. The word "parol" strictly means "by word of mouth," and excludes writing; but the term is applied to all simple contracts, whether they are merely oral or required to be in writing. They all require consideration, the only distinction being in the fact that some must be in writing.3

We shall now deal with the contracts of record and contracts under seal, and in following chapters with those forms which are superimposed upon simple contracts, and with consideration, the requisite common to all simple contracts.

Contracts Of Record

28. The obligations which are styled "contracts of record" are:

(a) Judgments of courts of record, whether entered by consent or rendered in invitum. In the latter case, however, the obligation is quasi contractual, and not contractual.

(b) Recognizances, which are obligations, entered into before a court of record, to do or forbear from doing a certain thing under a penalty.