페이지 이미지
PDF
ePub
[blocks in formation]

Sect. 1.-Definition of Terms. The term Obligation is used by the Roman jurists, and by Definition of Pothier in the preliminary article to his treatise on Obligations, as denoting, in its proper and confined sense, every legal tie which imposes the necessity of doing or abstaining from doing any act; and as distinguished from imperfect obligations,—such as charity and gratitude,—which impose a general duty, but do not confer any particular right; as well as from natural obligations, which, although they have a definite object, and are binding in conscience, cannot be enforced by legal remedy. English lawyers, however, generally use the word obligation in a more strict and technical sense, namely, as importing the particular species of Contract by sealed Bond (a); and they adopt the term “Contract " when they wish to convey the more extensive idea of the responsibility which results from the voluntary engagement of one individual to another, as distinguished from that class of liabilities which originate in torts, or wrongs unconnected with agreement. In the language of our law, therefore, the general term Contract comprises every description of agreement, obligation, or legal tie, whereby

terms.

(a) Co. Litt. 172 a. See Bro. Abr., tion. In Com. Dig., Bonds are treated Roll. Abr., and Bac. Abr., tit Obliga- of under the head Pait.

Ch. I. 8. 1.
Different
kinds of
Contract.

one party binds himself, or becomes bound, expressly or impliedly, to another, to pay a sum of money, or to do or omit to do any particular act : whereas the term Covenant is properly applied, to denote a contract under seal; and the term Agreement generally denotes a contract not under seal ; whilst the term Promise is used to signify any mere parol engagement by one person with another, where there is no consideration for the promise, nor any corresponding duty on the part of him to whom it is made.

Contracts, or obligations ex contractu, are of three descriptions, and they may be classed, with reference to their respective orders or degrees of superiority, as follow :-1. Contracts of Record; 2. Contracts in sealed writing, or Specialties ; 3. Simple Contracts, being Contracts either by word of mouth or unsealed writing.

Different kinds of contract.

Contracts of record.

Sect. 2.Contracts of Record. 1st. Contracts or obligations of record consist of judgments, and recognizances (b); and these are of superior force, because they have been promulgated by, or are founded upon, the nuthority and have received the sanction of, a Court of Record (c). No consideration is necessary to render them binding; nor can the merits of a judgment ever be questioned by an original action, it being conclusive, as to the subject matter thereof, and as between the parties thereto, until it is set aside or reversed (d).

The contract of Record is not a contract in the same sense as the contract by specialty or simple contract. Where the record is a judgment, the contracting parties had contracted before the judgment was pronounced ; where it is a recognizance, the obligation is on one side only, that of the party entering into the recognizance.

Nature of the contract of record.

SECT. 3.- Contracts under Seal.

(a) Form and Delivery. Contracts or obligations under seal, or specialties, such as deeds and bonds, are instruments which are not merely in writing, but which are sealed by the party bound thereby, and delivered by him

Contracts under seal.

(b) As to recognizances, see especially the Indictable Offences Act, 1848, 11 & 12 Vict. c. 42, s. 20, and Forms in Schedule (О 1), (Q 2) and (S). Amongst this class were also formerly “Statutes staple," which have long been obsolete ; cf. Staple of England

v. Gorernor and Company of Bank of England (1887), 21 Q. B. D. 160, C.A. ; see the repealed 27 Ed. 3, c. 9.

(c) Co. Litt. 260 a.

(d) See Flower v. Lloyd (1879), 10 Cl. D. 327.

to, or for the benefit of the person to whom the liability is thereby

Ch. I. s. 3.

Contracts incurred. This is the formal contract of English law, and in no

under Seal. other way than by the use of this form could validity be given to executory contracts in early times (e). Neither a date (f ), nor, at common law, even the signature of the party (9), is essential to the Date. validity of a deed. But there cannot be a deed without writing, Signature.

Seal, sealing (which need not be by seal or wax (99)), and delivery (h).

Delivery. There may, however, be a sufficient delivery without words (i), or by words only, without any act of delivery, as where the party admitted and acted on an authorisation of his son to execute a deed by creditors of whom he was one (k) :—the only question in such cases being, whether the sealing of the deed was accompanied by any acts or words which were sufficient to show, that the party then intended to execute the deed, as his deed, presently binding upon him (1). Where, therefore, a party to an instrument sealed it, and declared in the presence of a witness that he delivered it as his deed, and yet kept it in his own possession, but nothing further transpired to show that he did not intend it to operate immediately, this was held to be a good delivery (m). And so it has been decided, that 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 (m).

A party may likewise deliver a deed as an escrow, that is, so Delivery as that it shall take effect or be his deed on certain conditions. And an escrow. such delivery need not be by express words; for if from all the facts attending the transaction, it can be reasonably inferred that the writing was delivered, not to take effect as a deed till a certain condition was performed, it will operate as an escrow (n). To constitute a delivery as an escrow, however, the delivery must always be made to a third party, and not to the grantee or covenantee (o). But a deed may be delivered as an escrow, to a solicitor who is acting for all the parties to it (P); or even to the solicitor of the grantee or covenantee himself, provided,

(c) See Anson's Law of Contract, (h) Co. Litt. 171 b. Ch. II., 10th ed., pp. 56 et seq., and (i) Co. Litt. 36 a. see too an article in the “ Law Quarterly (k) Tupper v. Foulkes (1861), 9 C. B., Review," Vol. 3 (1887), by John W. N. S. 797. Salmond.

(1) Xenos v. Wickham (1867), L. R., (f ) Bac. Abr. Obligation, (C.); Com. 2 H. L. 296. Dig. Fait, (B. 3).

(m) Doe d. Garnons v. Knight (1826). (9) Hodgkinson, Ex parte (1815), 19 5 B. & C. 671. Ves. 296.

(n) Gudgen v. Besset (1856), 6 E. & B. As to whether Statute of Frauds 986 ; Bowker v. Burdekin (1843), 11 requires signature, see p. 84, post. M. & W. 128, 147.

(99) Sandilands Ex parte (1871), L. (0) Co. Litt. 36 a. 6 C. P. 411 ; and see National Provincial (2) Millership v. Brookes (1860), 5 Bank of Englanet v. Jackson (1886), 33 H. & N. 797. Ch. D. 1, C. A.

CH. I. s. 3.

Contracts under Seal.

upon the whole transaction, it be clear that such delivery was
not intended to be a delivery, at that time, to such grantee,
or covenantee (9).

1

Immoral con. sideration,

(b) Consideration for Contracts under Seal.
Generally speaking, as we shall see in detail presently, the law
leans against mere gifts, and requires reciprocity in contracts.
But in the case of a contract under seal, no such reciprocity is
ordinarily required, the rule being that a contract under seal is
good even against a party deriving no advantage from it (r). It
has been doubted, however, whether the total failure of a con-
sideration obviously intended to exist, and upon which a contract
under seal is meant to be founded, will not afford a defence to an
action upon the contract (s); and it has been laid down that in
general specific performance will not be decreed of a contract
under seal which is entirely without consideration (t). But an
imperfect conveyance, if voluntary, is not binding, and equity will
not execute it in favour of volunteers, if anything remains to be
done (u).

And if the consideration be immoral or illegal, the contract,
though under seal, will be void. As to immoral consideration,
the rules are very fully laid down in Ayerst v. Jenkins (x), as
follows :

1. “Bonds or covenants founded on past cohabitation, whether adulterous, incestuous, or simply immoral, are valid in law, and not liable (unless there be other elements in the case) to be set aside in equity. 2. Such bonds or covenants, if given in consideration of future cohabitation, are void in law, and therefore of course also void in equity. 3. Relief cannot be given against any such bonds or covenants in equity if the illegal consideration appears on the face of the instrument ;” it being added that if an illegal consideration does not appear on the face of the instrument, relief may be given in some circumstances to a particeps criminis in equity.

The rules respecting illegal considerations, which will be fully stated hereafter (post, Ch. XXI.), are generally similar to those respecting immoral considerations.

Ayerst v.
Jenkins.

Illegal con. sideration.

(q) Per Hall, V.-C., Watkins y. Nash (1875), L. R., 20 Eq. 262.

(r) See Plowd. 308 ; Pratt v. Barker (1828), 1 Sim. 1, 4 Russ. 507 ; Morley v. Boothby (1825), 3 Bing. 107.

(3) Bunn v. Guy (1803), 4 East, 190 ; 7 R. R. 560 ; Rose ». Poulton (1831), 2 B. & Ad. 822 ; 36 R. R. 761.

(0) Wycherley v. Wycherley (1763),

2 Eden. 177 ; Grores v. Groves (1829), 3
Y. & J. 163.

(u) Snell's Principles of Equity, 8th
ed., p. 64 ; Lewin on Trusts, 8th ed.,
PP: 79 et seq.

(2) Ayerst v. Jenkins (1873), L. R., 16 Eq. 275, at p. 282, per Lord Selborne, L.C.

Seal.

to, or for the benefit of the person to whom the liability is thereby

CH. I. 8. 3.

Contracts incurred. This is the formal contract of English law, and in no

under Seal. other way than by the use of this form could validity be given to executory contracts in early times (e). Neither a date (s), nor, at common law, even the signature of the party (g), is essential to the Date. validity of a deed. But there cannot be a deed without writing, Signature, sealing (which need not be by seal or wax (99)), and delivery (h).

Delivery. There may, however, be a sufficient delivery without words (i), or by words only, without any act of delivery, as where the party admitted and acted on an authorisation of his son to execute a deed by creditors of whom he was one (k) :—the only question in such cases being, whether the sealing of the deed was accompanied by any acts or words which were sufficient to show, that the party then intended to execute the deed, as his deed, presently binding upon him (1). Where, therefore, a party to an instrument sealed it, and declared in the presence of a witness that he delivered it as his deed, and yet kept it in his own possession, but nothing further transpired to show that he did not intend it to operate immediately, this was held to be a good delivery (m). And so it has been decided, that 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 (m).

A party may likewise deliver a deed as an escrow, that is, so Delivery as that it shall take effect or be his deed on certain conditions. And an escrow. such delivery need not be by express words; for if from all the facts attending the transaction, it can be reasonably inferred that the writing was delivered, not to take effect as a deed till a certain condition was performed, it will operate as an escrow (n). To constitute a delivery as an escrow, however, the delivery must always be made to a third party, and not to the grantee or covenantee (o). But a deed may be delivered as an escrow, to a solicitor who is acting for all the parties to it (p); or even to the solicitor of the grantee or covenantee himself, provided,

(e) See Anson's Law of Contract, (h) Co. Litt. 171 b. Ch. II., 10th ed., pp. 56 et seq., and (i) Co. Litt. 36 a. see too an article in the “ Law Quarterly (k) Tupper v. Foulkes (1861), 9 C. B., Review,” Vol. 3 (1887), by Jolin W. N. S. 797. Salmond.

(1) Xenos v. Wickham (1867), L. R., (f) Bac. Abr. Obligation, (C.); Com. 2 H. L. 296. Dig. Fait, (B. 3).

(m) Doe d. Garnons v. Knight (1826). (9) Hodgkinson, Ex parte (1815), 19 5 B. & C. 671. Ves. 296.

(n) Gudgen v. Besset (1856), 6 E. & B. As to whether Statute of Frauds 986 ; Bowker v. Burdlekin (1843), 11 requires signature, see p. 84, post. M. & W. 128, 147.

(99) Sandilands Ex parte (1871), L. R. (0) Co. Litt. 36 a. 6 C. P. 411; and see National Provincial (P) Millership v. Brookes (1860), 5 Bank of Englanil v. Jackson (1886), 33 H. & N. 797. (h. D. 1, C. A.

« 이전계속 »