This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A genuine contract is an agreement to which the law attaches obligation; that is, it is an agreement of such a nature that the law will give some remedy for a breach thereof. Another form of expressing the same idea is to say that a contract is an agreement enforceable at law. This definition includes simple contracts at modern law; and sealed contracts where the promise rather than the grant is the chief idea. This is rather a statement of the consequences of the contract than a true definition. It is, however, substantially that which has been adopted by courts and text-writers. A collection of common-law definitions discloses substantial harmony, though the emphasis is placed differently in different definitions. "A contract is defined to be an agreement between two or more parties to do or not to do a particular thing."1 A contract is "an agreement in which a party undertakes to do or not to do a particular thing."2 "A contract is an agreement between competent parties, upon a consideration sufficient in law, to do or not to do a particular thing."3 "A contract is the thing upon which two or more people agree."4 It is
1 From Charles River Bridge v. Warren Bridge, 36 U. S. (11 Pet.) 420 (572), 9 L. ed. 773.
2 Sturges v. Crowinshield, 17 U. S. (4 Wheat.) 122, 197, 4 L. ed. 529, per Marshall, C. J.; quoted in Walker's Am. Law (11th Ed.), Sec. 205, p. 466; and in Bouvier's Law Dictionary (3d Ed.), Vol. I, p. 658.
3 People v. Bummer, 274 III. 637 (640), 113 N. E. 934 [citing 2 Black-stone's Com. 442, 2 Kent's Com. 449; 1 Parsons on Contracts, Sec. 1].
4 Southern Ry. Co. v. Huntsville
Lumber Co., 191 Ala. 333, 67 So. 695. For other definitions see United Transp. & Lighterage Co. v. N. Y. & Baltimore Transportation Line, 180 Fed. 902; Hotchkiss v. National City Bank, 200 Fed. 287; affirmed in Ernst v. Mechanics' & Metals Nat. Bank [Hotchkiss v. Nat. City Bank], 201 Fed. 664; Jones v. Tucker, 26 Del. (3 Boyce) 422, 84 Atl. 4, 1012; Weishut v. Lay-ton, 28 Del. (5 Boyce) 364, 93 Atl. 1057; American Lead Pencil Co. v. Nashville, Chattanooga & St. Louis Ry., 124 Tenn. 57, 134 S. W. 613.
"an agreement upon sufficient consideration, to do or not to do a particular thing."5 It is "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."6 "An agreement * * * containing a promise made by the one party, for a valid consideration, and agreed to by the other party, creates at common law a contract by force of the mere agreement; and the contract so created is a simple contract."7 "Every agreement and promise enforceable by law is a contract."8 "A contract is an interchange by agreement of legal rights."9 "The general term contract comprises every description of agreement, obligation, or legal tie, whereby one party binds himself, or becomes bound, expressly or impliedly, to another, to pay a sum of money, or to do, or omit to do, any particular act."10 "A contract is a deliberate engagement between competent parties, upon a legal consideration to do, or to abstain from doing, some act"11 "To define a contract is not so easy. A simple and apparently satisfactory definition is this: 'A contract is a promise or agreement enforceable by law.'"12 "Bargains and sales be called contracts, and be made by assent of the parties upon agreement between them, of goods or lands, for money, or for other recompense, but only of money usual, for money usual is no contract. Also a concord is properly upon an agreement between the parties, with divers articles therein, some rising on the one part, and some on the other."13 "Now a contract by parol is defined to be a bargain or agreement voluntarily made, either verbally, or in writing not under seal, upon a good consideration, between two or more persons capable of contracting, to do or forbear to do some lawful act."14 "A contract, according to the common-law definition of it, is an agreement between two or more, concerning something to be done, whereby both parties are bound to each other, or one is bound to the other. But, by the writers upon general law, it is defined to be 'Duorum pluriumve in idem placitum consensus, obligationis licité constituendae vel tollendae causa datus;' that is, the consent of two or more persons in the same thing, given with the intention of constituting, or dissolving lawfully some obligation.
5 2 Blackstone's Com. 442; quoted Walker's American Law (11th Ed.), Sec. 205, p. 466.
6 Anson on Contracts (14th Ed.), 10. 7 Leake on Contracts (6th Ed.), 8.
8 [Based on the Indian Contract Act.] Pollock on Contracts (8th Ed.), 2.
9 Wharton on Contracts, Sec. 1.
10 Chitty on Contracts (16tih Ed.), 2.
11 Story on Contracts (1st Ed.), Sec. 1.
12 Harriman on Contracts (2d Ed.), Sec. 3.
13 Doctor and Student, Dialogue II, ch. XXIV.
14 Comyn on Contracts, 2.
Perhaps the following description will be deemed more simple than either. 'A contract is a transaction in which each party comes under an obligation to the other, and each, reciprocally, acquires a right to what is promised by the other.' 15
Occasionally an attempt is made to combine in a modern definition all the different notions of contract at the different successive stages of the common law. "A contract is a promise from one or more persons to another or others, either made in fact or created by the law, to do or refrain from some lawful tiling; being also under the seal of the promisor, or being reduced to a judicial record, or being accompanied by valid consideration, or being executed, and not being in a form forbidden or declared inadequate by law."16
Definitions of jurists and economists are substantially to the same effect as most definitions of courts and text-writers. "A contract is an agreement which creates an obligation or right in personam between the parties to it."17 "An agreement is a de clared concurrence of will of two or more persons whereby a change in their legal spheres is intended. An obligation generated by agreement is a declared concurrence of intention as a result of which one person is bound to another for a performance."18 "Contracts are agreements of economic significance which are enforceable by public authority."19
The definitions of modern Roman law are substantially the same, except that consideration can not be included in the definition as an element. "An agreement by which two parties reciprocally promise and engage, or one of them singly, promises and engages to the other to give some particular thing, or to do or abstain from doing some particular act."20 "A contract is an agreement by which one or more persons bind themselves to one or more persons to give, or to do, or not to do, a certain thing."21
The definitions of contract at pure Roman law show a more archaic conception. "Every contract is an agreement, but not every agreement is a contract; but only such an agreement as is recognized by the jus civile, in contradistinction to the praetorian law, as the basis of an obligation."22 "Obligations arising from legal transactions always presuppose an agreement But it is not every agreement that has the effect of producing an actionable obligation between the contracting parties. The rather, in older Roman civil law this effect was acknowledged only in some special agreements (contractus), distinguished by their form or their subject-matter (causa); and furthermore, all obligatory operation was denied to other agreements (nuda pacta). A number of 'pacta' were, however, later on by gradual development placed on the same footing as 'contractus' by the jus civile and praetorium, so that in them also resides the power of engendering an obligation (so-called pacta vestita: adiecta, legitima, praetoria)."23
15Powell's Essay on Contracts, VI.
16Bishop on Contracts (2d enlarged Ed.), Sec. 22.
17Salmond on Jurisprudence (5th Ed.), 308 (Sec. 123).
18Gareis, Science of Law (Vol. I, Modern Legal Philosophy Series), 162. This is substantially Savigny'a definition in his System of Modern Roman Law, Sec. 140.
19 Ely's Property and Contract, Vol. It, p. 562.
20 Pothier on Obligations, Part I, ch. I, section I; Art. I, Sec. 1, p. 3 [repudiating the original Roman definition of contract as "an agreement having a name at the jus civile, or a causa"].
21 French Civil Code, Art 1101.
A simple contract at modern law is usually said to consist of four elements: parties competent to contract; a consideration, such as the law will recognize; a subject-matter, such as the law will allow; and agreement, or meeting of the minds, by offer on the one hand and acceptance on the other. These elements are considered in detail in the following chapters.