The subject of the present treatise is the sale of real estate and chattels real, or the formation and completion of contracts for the conveyance of land or other hereditaments in consideration of a price in money (a). Now in order to create a valid contract, that is, an agreement enforceable at law, it appears that there must be: (1.) Due capacity to contract on the part of the persons entering into the agreement; (2.) The expression by all parties of a common intention to create an obligation binding some or one of them; that is, an intention that some or one of them should do or forbear something affecting their legal relations for the benefit of the others or other of them; (3.) Due compliance with the forms or the presence of other matter required to make a promise enforceable by English law, beyond the mere expression of a common intention;

Sale defined.

Requisites of a valid contract.

(a) See Wills, J., J. & P. Coats v. Commist of Inland Revenue, 1897, 1 Q. B. 778, 78:5.

(4.) Nothing unlawful in the object of the agreement;

(5.) True, full and free consent of the parties; that is, consent unimpeachable as having been induced through mistake, misrepresentation, fraud, duress or undue influence (b).

Applying ourselves to the first of these elements of contract, it is to be observed that, in order to form a valid contract for the sale of land, the parties must have, not only capacity to make contracts generally but also due capacity to buy and sell land. As a general rule, all natural persons enjoy either capacity: but there are exceptions in the case of infants, persons of unsound mind, drunken persons, married women and convicts. Outlaws, too, and alien enemies are disabled by their incapacity for bringing actions from enforcing though not from making contracts (c). And corporations are limited in their capacity for buying and selling land (d). There are also cases in which the formation of an unimpeachable contract for the sale of land is prevented by the relation existing either between the vendor and purchaser, as in the instances of solicitor and client, trustee and cestui que trusty or between one party to the sale and the beneficial owner of the land or money dealt with, as where a man exercising a trust or power to sell or purchase land endeavours in the one case to buy the land himself, or in the other to sell his own land for the purpose (V). All these exceptional cases are reserved for subsequent consideration; and it is proposed first to examine the formation, incidents and usual course of a contract for sale of land made between persons of full contractual capacity; and to treat afterwards of any grounds for impeaching the contract. For the present therefore we will pass over the first, fourth and fifth of the above-mentioned elements of a valid contract, and devote our attention to the second and third, namely, the expression of consent, and its form.

Capacity.

General capacity to buy or sell land.

Exceptions - reserved for future consideration.

(b) Wms. Pers. Prop. 158, 16th ed.

(c) Bar, Abr. Outlawry, D. (3), Aliens, D.; Co. Litt. 129b. See below, Chap. XVI.

(d) See below, Chap. XVI.

(e) See below, Chap. XVII.

The common intention or consent of the parties to an agreement may be expressed either by their uniting in a set form of written or spoken words, or by the acceptance by some or one of them of an offer made to them or him by the others or other of them (f'). As to the forms or other matter required to make a promise enforceable by English law beyond the mere expression of a common intention, the main rule is that the contract must be evidenced by deed or else there must be a consideration for the promise (g). In contracts for the sale of land the element of consideration is always present. The promise on the vendor's part to convey the land to the purchaser is made in consideration of the purchaser's promise to pay the price, and vice versa. So that a contract for sale of land, though it be not made by deed, fulfils the requirements of English law, in so far as consideration is essential to its validity. A contract for sale of land is however one of those contracts on which the law imposes a requisite of form besides the element of consideration. For by the fourth section of the Statute of Frauds (A), no action shall be brought to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some person by him thereunto lawfully authorized. So that writing and signature by the part;/ to be charged or his agent are necessary to make a contract for the sale of land enforceable at law (i).

Expression of consent.

Form.

(f) Wms. Pers. Prop. 160, 16TH ed.

(g) Ibid. 161.

(h) Stat, 29 Car. II. c. 3.

1(2)

Contracts for the sale of land are generally concluded, on a sale by private treaty, by the signature by both parties or their agents of a formal written contract; and on a sale by auction, by the purchaser or his agent signing a memorandum embodying formal conditions of sale, which the auctioneer also signs as agent for the vendor. But such contracts may also be established by informal written memoranda or letters signed by the party to be charged therewith or his agent. So that a binding contract may result from the acceptance in writing duly signed of an offer to sell land. It is essential, however, whether the writing given in evidence be of a formal or an informal nature, that the terms of the agreement sought to be proved thereby should be sufficiently ascertained therein (j). The parties to the contract (k) and the property to be sold must therefore be sufficiently described (l), and the price, or the means of ascertaining it, be stated (m);