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.
It is impracticable and impossible to set forth in writing all the different stipulations and provisions which, by the operation of law, are terms of the contract. The difficulty, exists, not because the contract is in writing, but because it is impossible to make an exhaustive enumeration in express words of everything which may in law be a part of the contract. Some things are a part of the contract which are in the minds of both parties, though not stated in express language. Other things are presumed to be in the minds of the parties; but in many cases this presumption is purely artificial - a mere fiction. What is really meant is that certain things affect the contract, even if the parties do not agree upon them or even think of them. Valid laws which are in force when the contract is made are a part thereof, even though not expressly referred to. as fully as if incorporated therein,1 unless the contract shows an intention that such rules of law shall not apply.2 A statute fixing eight hours as a day's work upon public contract,3 the Interstate Commerce Act,4 the statute under which a contract for a public improvement is made,5 or a statute which provides for the rendition of public services,6 and statutes with reference to the distribution of the estate of a decedent,7 are each to be regarded as a part of a contract which deals with the subject-matter for which such statute makes provision. A contract between heirs with reference to property descending to them is governed by the law of descent as then interpreted by the court, and a subsequent change of judicial decision will not change the legal effect of such contract.8 A contract for paying "all damages" due to a collision does not limit the parties to the amount which the admiralty would assess in the absence of contract.9 A provision for the inspection of weights and measures is to be regarded as a part of a contract for the sale of weights and measures.10 An ordinance requiring the walls of opera-houses to be of a specified thickness is a part of a contract of subscription for the erection of an opera-house within the city, although it is not referred to therein.11 Municipal ordinances creating and establishing fire limits are part of a contract of insurance of property in such limits, and bind the insurer.12 A provision for a farm-crossing across a railroad track in a contract for a right of way is to be construed as requiring such maintenance as would be necessary if the right of way for the railway had been acquired by eminent domain.13
1 See Sec. 2048 et seq.
1 United States. Bank v. Eaton, 95 Fed. 355; Armour Packing Co. v. United States, 153 Fed. 1, 82 C. C. A. 135, 14 L R. A. (N.S.) 400.
Alabama. Board of Revenue v. Far-son. 197 Ala. 375, 72 So. 613.
California. Ede v. Knight, 93 Cal. 159, 28 Pac. 860; Nielsen v. Assurance Society, 139 Cal. 332, 96 Am. St. Rep. 146, 73 Pac. 168.
Florida. State v. Tampa Waterworks Co., 56 Fla. 858, 47 So. 358.
Illinois. Barrett v. Bodilie, 15S 111. 479, 49 Am. St. Rep. 172, 42 N. E. 143, 43 X. E. 367; Andrews, etc., Co. v. Atwood, 167 111. 249, 47 N. E. 387 [affirming, 67 111. App. 303]; Kendall v.
Fader, 199 111. 294, 65 N. E. 318 [affirming. 99 111. App. 1041.
Indiana. Haskett v. Maxey, 134 Ind. 182, 19 L. R. A. 379. 33 N. E. 358; Hogston v. Bell, 185 Ind. 536, 112 N. E. 883.
Kentucky. Orave9 County Water Co. v. Ligon. 112 Ky. 775, 66 S. W. 725; Board of Education v. Littrell, 173 Ky. 78, 190 S. W. 465.
Maine. Phinney v. Phinney, 81 Me. 450, 10 Am. St. Rep. 266, 4 L. R. A. 348, 17 Atl. 405.
Minnesota. Haugen v. Sundseth, 106 Minn. 129, 118 N. W. 666.
Ohio. Cincinnati v. Public Utilities Commission, 98 O. S. 320, 3 A. L. R. 705, 121 N. E. 688.
Oklahoma. Knight v. Clinkscales, 51 Okla. 508, 152 Pac. 133; Farley v. Board of Education, - Okla. - , 162 Pac. 797.
Utah. Weight v. Bailey, 45 Utah 584, 147 Pac. 899.
Washington. Wright v. Computing Scale Co., 47 Wash. 107, 91 Pac. 571.
Wisconsin. Manistee Iron Works Co. v. Lumber Co., 92 Wis. 21, 65 N. W. 863.
See also, Milwaukee v. Raulf, 164 Wis. 172, 159 N. W. 819.
A statute granting to a city the power to make a binding contract for rates to be charged by a public utility for a certain period is part of such a contract. Cincinnati v. Public Utilities Commission, 98 0. S. 320, 3 A. L. R. 705, 121 N. E. 688.
2 The extent to which the parties can prevent the Coperation of rules of law is discussed elsewhere. See Sec. 657 et seq.
3 Milwaukee v. Raulf, 164 Wis. 172, 159 N. W. 819 (obiter).
4 Armour Packing Co. v. United States, 153 Fed. 1, 82 C. C. A. 135, 14 L. R. A. (N.S.) 400.
5 Board of Revenue v. Farson, 197 Ala. 375, 72 So. 613.
6 State v. Tampa Waterworks Co., 5d Fla. 858, 47 So. 358.
7 Weight v. Bailey, 45 Utah 584, 147 Pac. 899.
8 Haskett v. Maxey, 134 Ind. 182, 19 L. R. A. 379, 33 N. E. 358.
9 Clarke v. Dunraven , A. C. 59. 10 Wright v. Computing Scale Co., 47 Wash. 107, 91 Pac. 571.
11 Gerner v. Church, 43 Neb. 690, 62 N. W. 51.
12 Larkin v. Ins. Co., 80 Minn. 527, 81 Am. St. Rep. 286, 83 N. W. 409.
An unconstitutional statute is not, however, a term of a contract made between the time that it is passed and the time that it is declared unconstitutional,14 even, it has been held, if expressly made a part of the contract.15
It has been said that the remedy which is in force at the time and place that a contract is made, is a part thereof.16 Remedies are ordinarily governed by the law of the place where the action is brought,17 and they are subject to modification at any time by the legislature as long as an adequate remedy is left and as long as the substantive rights of the parties Are not materially affected by the change of remedy.18
The law which is a part of the contract is undoubtedly the law which exists at the time that the contract is made and at the place where it is made and to be performed, if these two places are the same.19 If the contract is made in one place and to be performed in another, a question is raised as to the system of law which is applicable; and this question is discussed elsewhere.20
An unconstitutional statute does not become a part of a contract made after such statute is passed and before it is declared unconstitutional, where the contract does not expressly incorporate the provisions of such statute.21 Even if the provisions of the unconstitutional statute are carried into the contract in compliance with the peremptory requirements of such statute, they do not thereby in legal effect become a part of such contract.22 "It is not in the power of the legislature to protect an invalid law from judicial scrutiny by providing that it must receive the assent of the parties to every contract to which it relates."23
13Briscoe Home Trustees v. Ohio River R. Co., 78 W. Va. 502, L. R. A. 1916F, 1294, 89 S. E. 727.
14 Palmer v. Tingle, 55 O. S. 423, 45 N. E. 313.
15People v. Coler, 166 N. Y. 1, 52 L. R. A. 814, 82 Am. St. Rep. 605. 59 N. E.716; (City of) Cleveland v. Construction Co., 67 O. S. 197, 93 Am. St. Rep. 670, 59 L. R. A. 775, 65 N. E. 885. (Contracts of public corporations.)
16 Muller v. McCann, 50 Okla. 710, 151 Pac. 621.
17 See ch. XCIV.
18See ch. XCV.
19 Knight v. Clinkscales, 51 Okla. 508, 152 Pac. 133. See ch. XCTV.
20 See chs. XCIV et seq.
21 Palmer v. Tingle. 55 O. S. 423, 45 N. E. 313.
22 People v. Coler. 166 N. Y. 1, 82 Am. St. Rep. 605. 59 N. E. 716; Cleveland v. Construction Co.. 67 O. S. 197, 93 Am. St. Rep. 670, 59 L. R. A. 775, 65 X. E. 885.
23 People v. Coler, 166 N. Y. 1, 9, 82 Am. St. Rep. 605. 50 N. E. 716 [quoted in Cleveland v. Construction Co., 67 O. S. 197. 93 Am. St. Rep. 670, 59 L. R. A. 775, 65 N. E. 885].