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.
An executed contract has transferred title to property, conferred the benefit of services and the like. Whether it can properly be classed as a contract or not is questionable, since a contract is an agreement which results in obligation, an enforceable promise, and in executed contracts there is no outstanding promise to be enforced. It was a contract; but is it still one Whenever this question has arisen in such form that the courts were called upon to pass on it, inconsistent answers have been given. From the nature of the case, no action can be brought upon it; hence questions as to the form of action, the remedy, and the period of limitations can not arise. The provision of the Statute of Frauds, that no action shall be maintained on certain kinds of contract, does not of course apply to executed contracts.1 On the other hand, the constitutional provisions forbidding a state to impair the obligation of contracts apply to executed contracts.2 Personal disqualifications which make a contract voidable apply as well to an executed contract as to an executory contract;3 but those which make a contract void have been held not to apply.4 Defects in agreements, such as misrepresentation, mistake, fraud, duress and undue influence apply to an executed contract as well as to an executory, and constitute grounds for rescission in proper cases.5 Lack of consideration has no effect on the validity of an executed contract, in the absence of mistake, fraud, and the like;6 gift, on delivery is irrevocable. Illegality of object has, as a rule, no effect on the validity of an executed contract, except where the legislature has specifically provided the contrary.7 The actual decisions are therefore not uniform as to whether an executed contract possesses the elements of a genuine contract. On principle, it may be said that an executed contract should be rather subject to the rules of conveyances than of contracts.