A contract has been aptly defined to be “an agreement to do or not to do
some particular thing.” It may be verbal or in writing. If the conditions
of a contract, whether verbal or written, be expressly stated and agreed
upon, it is then termed an expressed contract. If on the other hand there
are no well defined and specific agreements regarding the undertaking
or the consideration to be paid for its accomplishment, it is called an
implied contract.
The conditions of an expressed contract must be strictly complied with,
and the parties to it are bound to faithfully observe the same, however
onerous may be the burden, while the conditions of an implied contract
not being agreed upon specifically, are such as custom may dictate.
As an illustration of this: A agrees to pay B two dollars per day for
labor. This is expressed, so far as the rate of wages is concerned; but
the number of hours that shall be taken to constitute a day’s work is
not agreed upon, and must be determined by implication. As a result, the
question would be settled by the custom in such matters which obtained in
the place where the contract was made. Or, if A engages B to undertake
the building of a cottage, with no stipulations regarding the wages to
be paid, B when the work is completed can recover for his compensation
whatever is proved to be the usual and customary remuneration paid men
in the same business and possessed of equal skill. The enforcement of
obligations is no less strict when the standing of the contract is
implied than when expressed, after determining what the obligations of
the parties are.
The elements of a contract are parties, consideration, subject matter,
mutual assent and time.
PARTIES.—Two or more competent persons may make a legal contract.
Competent persons, it will be observed. What constitutes competency?
Generally, legal age and sound mind; while minority, insanity, idiocy,
intoxication and coverture are said to be the conditions of incompetency.
With the exception of a few states where females become of age at
eighteen, the legal age is twenty-one years. A consideration of the
conditions of incompetency will sufficiently explain the requisites of
competency negatively. Minors, or those who have not attained legal
age, or infants as the law denominates them, are considered incompetent
because of inexperience, and a fair presumption that unprincipled
parties might take unfair advantage of them, and lead them into business
complications which a riper experience would disapprove. The contracts of
a minor approved by him when he becomes of age are binding, however; so
that it will be observed, such contracts are not absolutely void, only
voidable at the discretion of the minor. If an infant makes a transfer
of real estate he may, on reaching his majority, compel the purchaser
to reconvey the property, by returning to him the purchase money. The
law would not permit him to retain the purchase price and compel the
re-transfer, because it is not the policy of the law to assist the
minor in his fraudulent purposes, but only to protect him from the
impositions of those skilled in wicked devices. There are some contracts
which an infant can not disclaim, viz.: such as are for necessaries.
It is something of a question to determine what are necessaries; but
the minor’s fortune and social position must be the guide, for where
sufficient food and clothes might be all that would be termed necessaries
for one, for another by fortune more favored, “equipage, dress and
entertainments” would be considered just as essential.
UNSOUND MIND.—Insanity, or a mind deranged; idiocy, or the lack of
a mind; intoxication, or a mind so beclouded as to be incapable
of understandingly judging of the merits of an ordinary business
transaction; a mind in any one of these conditions is unsound, and its
possessor an incompetent.
Coverture, or marriage, by the common law made woman an incompetent
party, and she was thus precluded from legally contracting. By statutory
enactments nearly all of the states have changed this, so that a married
woman may now do business, contract debts as though unmarried, and
also hold property in her own right. The ancient barbarous theory that
marriage ought to annul a woman’s right to property in her own name and
almost deny her individual existence is nearly a relic, an error almost
of the past.
CONSIDERATION.—Any consideration is sufficient to sustain a contract,
provided it be not illegal, or that which is prohibited by law; immoral,
or that which contravenes the moral law; and provided the contract was
born of good faith, and not tainted by fraud. A contract into which any
element of fraud has entered receives no countenance at the law. However
favorable stipulations may seem, a fraudulent intent, proved, will
nullify the contract.
THE SUBJECT MATTER, or that concerning which the contract is made must
not be illegal, immoral or impossible. The reasons for this are apparent,
since it would controvert the very object of legal rights and public
policy if an illegal or immoral undertaking were permitted to enter
into a contract as a thing to be done and as a recognized right to be
enforced; or, if a stipulation were permitted to stand, which called for
the doing of that which is impossible.
Mutual assent is an essential element. “It takes two to make a trade.”
There must be an agreement of minds between contracting parties as to
what is to be done, and how, and in consideration of what; and this
agreement must be at the same time, or to state it in a legal fashion,
“minds must meet.”
The time stated for the performance of a contract should be agreed upon.
In case it is not, then it must be accomplished within a reasonable time.
What is a reasonable time must be determined by the special circumstances
of each individual case. It is with this as with other elements of a
contract if not fully understood and agreed upon, the assistance of
customs and usages must be invoked to settle the disputed point.
STATUTE OF FRAUDS.—This is an old English statute, adopted, slightly
modified, by the several states. It requires the following contracts to
be in writing: For the conveyance of real estate; lease of land for more
than one year; in consideration of marriage; to answer for the debt,
default or wrongful act of another; not to be performed within one year;
for the sale of personal property of a certain value (by most states
placed at fifty dollars), unless the sale be by auction, or part of the
purchase money be paid, or part of the goods delivered at the time of
sale.
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It is well that every man should be in a state of moral union with
others; he must have one or more men to whom he can communicate the
inmost feelings of his being, heart, and the reasons of his conduct;
there should be nothing in him which is not known to some one else. That
is the true meaning of the divine saying, “It is not good that man should
be alone.”—_Schleiermacher._