« 이전계속 »
resulting from the voluntary engagement of an individual to another, and as distinguished from a liability originating in a tort or wrong unconnected with agreement. The term Contract comprises, in its full and more liberal signification, every description of agreement, obligation, or legal tie, whereby one party binds himself, or becomes bound, expressly or impliedly, to another to pay a sum of money, or perform or omit to do a certain act; but in its more familiar sense it is most frequently applied to agreements not under seal (6). The term Agreement is rarely used in relation to specialties; for, if considered in its strict and more critical meaning, it clearly imports a reciprocity of obligation (c), and in that point of view would not include specialties, which require no consideration or mutuality of stipulation. The word promise is used to denote the engagement of a person, without regard to the consideration for it, or corresponding duty of the other party (d).
It is not, however, very material to consider what particular meaning is generally attached to these various terms. The essential distinctions between the different kinds of contracts constitute a much more important subject of inquiry. These distinctions are clearly designated, and assign to each class of contracts, attributes and consequences of the most marked character. They demand a cursory notice before we discuss in detail the only subject-matter of this work, viz. Contracts not under Seal.
Contracts, or obligations ex contractu, are of three descriptions, and may thus be classed in their relative order or degree of superiority :-1, Of Record; 2, Specialties ; 3, Simple Contracts.
1. CONTRACTS OF RECORD.- Contracts, or obligations of record, are judgments, recognizances, or statutes staple ; and these are of superior force, because they have been promulgated by, or are founded upon the authority, and have received the sanction
(6) And perhaps this is its more thorpe v. Bryant, Bing. N. C. 742; correct meaning. See 3 Chit. Com. 3 Scott, 238, S. C. L. 2; per Periam, J., in Sidenham and (d) See id. And the word Promise Worlington's case, 2 Leon. 225; Johns. is used in this sense in the late staDic. tit. Contracts.
tutes, which render writing and sig(c) Com. Dig. Agreement, (A. 1), nature necessary to give effect to encites Plowd. 5 a, 6 a. See per Lord gagements (without any new consiEllenborough, in Wain v. Warlters, 5 deration) to pay debts barred by the East, 16; by the court, in Saunders v. Statute of Limitations, by a bankrupt's Wakefield, 4 B. & Ald. 595; and certificate, or by infancy. Post, p. 4, Lawrence, J., in Egerton v. Mattheus,
note (9). 6 East, 308 ; per Tindal, C. J. in Lay
of a Court of Record. These obligations bind the land (e); their existence is in general triable only by an inspection of the record itself, not as a matter of fact(s); and no consideration is necessary to render them binding, nor can they be impeached by the parties themselves, even for a defect apparent on the face of them, except by writ of error (g). When, however, they have been obtained by any irregularity in practice, the court in which the action is pending has, of course, the power to set them aside; but they cannot, whilst in force, be impugned by the parties by pleading. In general, the record precludes all inquiry into any illegality of consideration or fraud in the transaction which formed its foundation ; except that third persons, affected by a fraudulent judgment, may impeach it in pleading, or treat it as void (h).
2. CONTRACTS UNDER SEAL.-Contracts, or obligations under seal, or specialties, (as deeds, bonds, &c.,) are instruments not merely in writing, but sealed and delivered over as deeds, by the party bound, to or for the benefit of the person to whom the liability is incurred: such sealing and delivery being a particular form and ceremony, which alter the nature and operation of the agreement. Neither a date (i), nor at common law even the sig. nature of the party (k), is essential to the validity of an instrument as a deed: but neither the sealing nor delivery can be dispensed with (I). There may, however, be a sufficient delivery by words only: and where a party to an instrument sealed it, and declared in the presence of a witness that he delivered it as bis deed, and yet he kept it in his own possession, but nothing further transpired to qualify the declaration, or to show that the party did not intend it to operate immediately, it was held that the delivery was sufficient to create a deed. So where a person made a deed of gift of all his real property to his daughter, and signed and sealed it, and, no one being present but the attesting witnesses, said, “I deliver this as my last act and deed ;” and after this desired a third person to keep it, and not deliver it to his grand-daughter till he was dead, it being suggested to him that she might otherwise take his property from him in his lifetime: it was held that the delivery of the deed was complete; but semble if the direction to keep it had been given even before he said, “I deliver this, &c.,” the deed would not have operated as an escrow (m). So a delivery to a third person, for the use of the covenantee, is sufficient, if the grantor part with all control over the instrument, although the person to whom the deed is so delivered be not the agent of the covenantee (n). And the fact of a deed being in the covenantee's possession is primâ facie evidence of its having been delivered to him as a deed (o).
(e) Tidd, 9th ed. 935; 1 & 2 Vict. warrants of attorney, see Tidd, 9th ed. c. 110, s. 13.
547; Harrod v. Benton, 8 B. & C. See 1 Chit. Pl. 600; 3 id. 1102; 217; Martin v. Martin, 3 B. & Ad. 6th ed. The existence of an Irish 934. judgment is, however, triable in this (h) 13 Eliz. c. 5; 27 Eliz. c. 4; country by a jury; for it can only be Moore v. Bowmaker, 7 Taunt. 97 ; 2 proved here by an examined copy Marsh. 392, S. C. upon oath, the veracity of which is a (i) Bac. Ab, Obligation (C); Com. question for the jury. Collins v. Lord Dig. Fait (B 3). Matthew, 5 East, 473. According to (k) Bac. Ab. Obligation (C); 2 Bla. Harris v. Saunders, 4 B. & C. 411, an Com. 304; 17 Ves. 479; aliter, it Irish judgment is not to be treated in seems in those cases in which signathis country as a record.
ture is required by the Statute of (g) See Kloses v. Marferlan, 2 Burr, Frauds in respect of the subject-matter 1005; per Lawrence, J., in Hayward of the contract. v. Ribbans, 4 East, 311; 3 Chit. Com. (l) See the different Abridgments, L. 10. As to the jurisdiction of the and Com. Dig. Fait; 2 Bla. C. 340. courts over judgments on fraudulent
3. Simple Contracts.- In speaking of simple contracts, we are to understand not only verbal promises, strictly so called, but also such as are reduced into writing, but are deficient in the formula of sealing and delivery over as deeds. It is an essential and leading principle of the law of contracts that agreements by parol, and such as are in writing, (but are not sealed and delivered as deeds,) have the same efficacy, properties, and effect. The difference is not between verbal and written contracts, but between parol or written contracts on the one hand, and specialties or obligations under seal on the other. It is true, that, by the Statute of Frauds (p), certain agreements must be reduced into writing, and signed by the party to be charged thereon; and other recent acts of parliament render writing and signature indispensable requisites to the validity of particular promises (q). But the ceremonies of writing and of signature are in these in
(m) Doe d. Lloyd v. Bennett, 8 C. & Ald. 601; Kain v. Old, 2 B. & C. & P. 124.
631. (n) Doe d. Garnons v. Knight, 5 B. (9) A promise to pay a debt barred & C. 671; 8 D. & R. 348, S. C. by the Statute of Limitations, 9 G. 4,
(0) Hare v. Horton, 5 B. & Ad. c. 14, s. 1; 3 & 4 W. 4, c. 42, s. 5; 715; 2 Nev. & M. 428, S. C.
and 3 & 4 W. 4, c. 27, s. 40; or by (p) 29 Car. ?, c. 3. See per Bay- infancy, 9 G. 4, c. 14, s. 5; or by a ley, J., in Saunders v. Wakefield, 4 B. bankrupt's certificate, 6 G. 4, c. 16,
s. 131, must be in writing.
stances prescribed rather as necessary evidence of the contract or promise to which they refer, than as an essential or constituent part of the engagement itself (r). The character of the agreement and its effects are not altered. The forms of writing and signature are essential in the particular instance, but even when observed, the agreement acquires no greater vigour and force than such as belong to a contract of that class; and there are still wanting, and must be supplied, all the usual requisites of a simple contract to give it efficacy. Thus, a consideration is necessary to the validity of a simple contract, whether it be entered into verbally or in writing.
“ All contracts are, by the laws of England, distinguished into agreements by specialty and agreements by parol: nor is there any such third class, as some of the counsel have endeavoured to maintain, as contracts in writing. If they be merely written, and not specialties, they are parol, and a consideration must be proved (s)."
The solemnity and deliberation with which, on account of the ceremonies to be observed, a specialty is presumed to be entered into, attach to it an importance and a character which do not belong to a simple contract.
Thus, to mention the most striking distinction, in the case of a contract not under seal, a consideration is absolutely necessary to give it validity, but in the instance of a specialty, no consideration whatever is in general requisite to render it obligatory, even in a court of equity (t). A deed is good, though it be voluntarily given, if it be not obtained by fraud, and do not im
(r) See per Cur. Thornton v. Kemp. ster, 5 Taunt. 788; Egerton v. Matthews, 6 East, 307. It is on this ground that a party may sue on a contract, although it be void as against himself for want of bis signature under the Statute of Frauds, id.; and although in general a contract must be obligatory on both parties. See post,
(3) Per Skynner, C. B., in delivering the opinion of the judges in Ronn v. Hughes, in error, Dom. Proc. 7, Term R. 350, note (a); 7 Bro. P. C. 551, S. C.; 3 Burr. 4th ed. 1672, note (e); 1 Bac. Abr. 5th ed. 112, marginal note, tit. Agreements, (B2).
(1) Plowd. 308; 2 Bla. Com. 446; Fallowes v. Taylor, 7 T. R. 475, 477 ; Binnington v. Wallis, 4 B. & Al. 650,
652. And see per Best, C.J., Morlry v. Boothby, 3 Bing. 111, 112; 1 Fonb. Tr. Eq. 5th ed. 342, note. But it seems that equity will not in general decree a specific performance of a deed entirely without consideration. See 1 Fonbl. 151, n.; Wycherley v. Wycherley, 2 Eden, 177; Grove's v. Groves, 3 Y. & J. 163. In the case of a deed which operates in, partial restraint of trade, some consideration must exist. Homer v. Ashford, 3 Bing. 322; see also Wallis v. Day, 2 Mee. & W. 281; per Abinger, C. J., Leighton v. Wales, 3 M. & W. 545; but it is not material that such consideration be equal to the restraint agreed to. Hitchcock v. Coker, Ad. & E. 438; Archer v. Mursh, 2 Nev. & P. 562; 6 A. & E. 959, S. C.
pugn any of the rules of law intended for the protection of creditors (u).
The technical doctrine of estoppel applies in general to deeds and records only; not to simple contracts (x). It is not, however, to be supposed that a contract has not any effect as an admission against a party, because it is not under seal. On the contrary, an admission in such a contract is strong presumptive evidence against the party, but it is not conclusive. He is not absolutely precluded from showing the real truth. Whereas a deed operates as a conclusive bar, and prevents all inquiry into the truth; except in the cases of duress, fraud, incompetency to enter into the deed, or illegality of consideration, or object in making it. These may be shown to defeat the deed, although
(u) See 13 Eliz. c. 5; 27 Eliz. c. 4; Doe d. Otley v. Manning, 9 East, 59. Roberts on Fraudulent Conveyances; It should be observed, that although a E. Chitty's Eq. Index, tit. Deeds, 3, consideration is not necessary in geand Debtor and Creditor, 6; Shears neral to give effect to a deed or covev. Rogers, 3 B. & Ad. 362. In the nant under seal, yet the total failure case of a conveyance by bargain and of a consideration expressed in the sale there must be some pecuniary deed, and upon which the instrument consideration to raise a use. See 2 is meant to be founded, may afford a Saunders on Uses, 3d ed. 45; Shep. defence. See this doctrine examined Touch. 221 ; 2 Bla. C. 338; 4 Cruise, in Rose v. Poulton, 2 B. & Ad. 822 ; Dig. 2d ed. 27, 127, 136, 145; Barton, sed vide Wallis v. Duy, 2 Mee. & W. Index, Considerations. In the case of 277. a covenant to stand seised to uses there (.r) 2 Bla. Com. 295; Com. Dig. must be a good consideration. No Estoppel (A). See Taylor v. Clow, 1 consideration is necessary where the B. & Ad. 223. A recital in a deed of conveyance is by release ; see id. As a particular fact estops the party; to the difference between a good and Lainson v. Tremere, 1 Ad. & E. 792 ; valuable consideration, see post, 29; Bowman v. Taylor, 2 Ad. & E. 278, Shep. Touch. 221 ; 2 Bla. Com. 296, The recital of a deed in a former deed 297, note (7), Chitty's ed. The gene- between the same parties proves as ral rule is, that a voluntary conveyance between the parties so much of the by deed is good both at law and in former deed as is recited, but no more; equity against the party himself, id.; Gillett v. Abbott, 7 Ad. & E. 783; Fonb. Tr. Eq. b. 1, c. 5, s. 2. A vo- Shelley v. Wright, Willes, R. 9; 2 B. luntary settlement of lands made in & Ad. 544. Estoppel is when a man consideration of natural love and af- is concluded by his own act or acceptfection is void as against a subsequent ance to say the truth; and it may be purchaser for a valuable consideration, by matter of record, of writing, or in ihough with notice of the prior settle- pais ; Co. Lit. 352 a. " A deed is esment before all the purchase money sential to an estoppel,"
per Bayley, J., was paid, or the deeds executed, and Pike v. Eyre, 9 B. & C. 914. A bill though the settler had other property of lading is not conclusive between the at the time of the prior settlement, shippers of goods and the ship-owner; and did not appear to be then in- Butes v. Todd, 1 Moo. & Rob. 106. debted, and there was no fraud in fact Nor semble as against the ship-owner in the transaction; for the law which in favour of a holder of it for value; is in all cases the judge of fraud and Berkely v. Walling, 2 Nev. & P. 178; covin arising out of facts and intents, 7 Ad. & E. 29, S. C. Nor is a receipt infers fraud in this case upon con- conclusive evidence; Graves v. Key, 3 struction of the statute, 27 Eliz. c. 4; B. & Ad. 313.