§ 1. A contract is a deliberate engagement between competent parties, upon a legal consideration, to do, or to abstain from doing, some act.1 In its widest sense it includes records and specialties, but the term is usually employed to designate only simple or parol contracts. By parol contracts, is to be understood, not only verbal and unwritten contracts, but all contracts not of record nor under seal. This is strictly the legal signification of the term contract, inasmuch as the existence of a consideration which is necessary to constitute a parol agreement is not requisite, or rather is presumed, in obligations of record and in specialities.2
1 A better statement of the essentials of a simple contract has seldom been given than that in Comyn on Contracts, p. 2 : " 1st. A person able to contract. 2d. A person able to be contracted with. 3d. A thing to be contracted for. 4th. A good and sufficient consideration. 5th. Clear and explicit words to express the contract. 6th. The assent of both contracting parties."
2 Chitty on Cont. (5th Am. ed.) 20. Chief Justice Marshall, in Sturges v. Crowninshield (4 Wheat. 196), defines a contract to be "an agreement in which a party undertakes to do or not to do a particular thing." This definition is intended to embrace all kinds of contracts, whether by record, specialty, or parol, and therefore omits the consideration. It seems impossible, however, to classify these three species of obligation under the generic term contract, since, as every definition must either state or omit the consideration, it must necessarily be incomplete as to the one or the other class. Blackstone's definition, " an agreement, upon sufficient consideration, to do or not to do a particular thing " (2 Black. Comm. 446), seems better in this particular, inasmuch as a deed may be considered as importing a consideration, although it be unnecessary to express it on the face of the instrument, and although both parties be estopped to deny it. Yet even this definition omits all mention of the competency of the parties, and of that deliberate assent of the understanding which is requisite to the validity of every contract, and therefore it seems imperfect. A contract is defined, by an able writer in the Law Magazine, as "a mutual engagement voluntarily and deliberately entered into between two persons, at least, to do something beneficial to each other." 1 Law Mag. 531. Chitty, in his work on Contracts, gives a fuller and more elaborate definition, but it only includes parol contracts, and might rather be called a description than a definition. "A contract not under seal,11 he says, "is the mutual assent of two or more persons, competent to contract, founded on a sufficient and legal motive, inducement, or consideration, to perform some legal act, or omit to do any thing, the performance of which is not enjoined by law."Chitty on Cont. 7. Upon the whole, Blackstone's seems to approach nearest to a correct definition. The term obligation, which includes every legal tie, as distinguished from imperfect obligations, such as affection and gratitude, and natural obligations, which afford no legal remedy, would seem the better generic term, comprehending the different species of record, specialty, and parol contract. Custom has, however, affixed to all species of legal obligation the term contract. See 20 Am. Jur. 1.
§ 2. Contracts are divided into three classes. 1st. Contracts of Record, such as judgments, recognizances, and statutes staple. 2d. Specialties, which are contracts under seal,-such as deeds and bonds. 3d. Simple Contracts, or contracts by parol. There is no such fourth class as contracts in writing, distinct from verbal and sealed contracts; both verbal and written contracts are included in the class of simple contracts, and the only distinction between them, at common law, is in regard to the mode of proof.1
§ 3. The first two classes of contract we do not in the present treatise propose to discuss, but shall confine ourselves to the consideration of the principles applicable to simple contracts. It may be well, however, here to state, the various particulars in which simple or parol contracts are distinguished from specialties, or contracts under seal.
§ 4. In the first place, specialties do not require a consideration to render them obligatory at law; while the consideration is the very life of a parol agreement.
1 Harm v. Hughes, cited in the note to 7 T. R. 350; Ballard v. Walker, 3 Johns. Cas. 65; Perrine v. Cheeseman, 6 Halsted, 174; People v. Shall, 9 Cow. 778; Thacher v. Dinsmore, 5 Mass. 301. See Hunt v. Reynolds, 9 R.I 303 (1869).
§ 5. In the second place, specialties must be sealed and delivered; but a mutual understanding and assent are alone necessary to complete a parol contract.
§ 6. In the third place, the technical doctrine of estoppel obtains in respect to specialties. Neither party can go behind the instrument, and the recital therein of any material fact precludes the right to controvert it.1 In simple contracts, however, although an admission therein of a fact affords evidence of its truth, it may be disproved, and evidence may be given to controvert it.2
§ 7. In the fourth place, in case of the death of either party to a specialty, the remedy by the ancient common law survives against the heir, if mentioned therein, and by statute against the devisee, and affects the realty;3 but the remedy on a parol contract extends only to the personal property of the contractor, and is binding only upon his personal representatives, namely, his executors and administrators.
§ 8. At the common law, also, a specialty debt is entitled to a priority over a simple contract debt in the payment of the debts of a testator or intestate,4 although in many of the American States the rule is altered by statute.
§ 9. In the fifth place, a deed must be declared upon specially, and profert must be made, and the defendant is entitled to oyer thereof.5 But there is neither profert nor oyer in the pleadings on a simple contract.
§ 10. A parol contract, then, is any contract not of record, nor under seal, whether it be written or verbal. Certainty, and facility of proof, are all the advantages gained by reducing such an agreement to writing,1 the liabilities of the respective parties are not changed.2
1 2 Black. Comm. 295; Comyns's Dig. Estoppel, A.; Taylor v. Clow, 1 B. & Ad. 223; Lainson v. Tremere, 1 Ad. & El. 792; Doe v. Ford, 3 Ad.
6 El. 649; Doe d. Preece v. Howells, 2 B. & Ad. 744; Bowman v. Taylor, 2 Ad. & El. 278; Hayne v. Maltby, 3 T. R. 438; Cox v. Cannon, 4 Bing. N. C. 453; 6 Scott, 347; 6 Dowl. 625; Levy v. Home, 3 Q. B. 760; Carter v. James, 13 M. & W. 137; Beckett v. Bradley, 8 Scott, N. R. 843;
7 Man. & Grang. 994; Carpenter v. Buller, 8 M. & W. 209.
2 Parish v. Stone, 14 Pick. 201, 202.
3 Bac. Abr. Heir, F. 1, Ancestor, F.; 2 Black. Comm. 243; Jefferson v. Morton, 2 Wms. Saunders, 6, n. 4, 8 a; Farley v. Briant, 3 Ad. & El. 839.
4 2 Black. Comm. 465.
5 1 Chitty, Plead. (6th ed.) 397.