ance of

deed.

No specific at least the covenantor is living (k), or where specific perperform-formance of such a covenant is sought, . . stands scarcely, voluntary or not at all, on a better footing than if it were contained agreenent though by in an instrument unsealed "(). And this restriction is not affected by the union of legal and equitable jurisdiction in the High Court of Justice. The rule that a court of equity will not grant specific performance of a gratuitous contract is so well settled that it is needless to cite further authorities for it: and it is not to be overlooked that whereas the other rules that limit the application of this peculiar remedy are of a more or less discretionary kind, and founded on motives of convenience and the practical requirements of procedure rather than on legal principle, this is an absolute and unqualified rule which must be considered as part of the substantive law.

But existence of considera

be shown

aliunde.

It is the practice of equity, however, at all events when the want of consideration is actively put forward as an tion may objection (and the practice must be the same, it is conceived, when the objection is made by way of defence in an action for specific performance) to admit evidence of an agreement under seal being in fact founded on good consideration, where the deed expresses a nominal consideration (m) or no consideration at all (n), though (save in a case of fraud or illegality) a consideration actually inconsistent with that expressed in the deed could probably not be shown (m).

Equity won't give effect to imperfect

gifts.

Closely connected with this in principle is the rule of equity that, although no consideration is required for the validity of a complete declaration of trust, or a complete transfer of any legal or equitable interest in property, yet an incomplete voluntary gift creates no right which can be

(k) We shall see under the head of undue influence that a system of presumptions has been established which makes it difficult in many cases for persons claiming under a voluntary deed to uphold its validity if the donor, or even his representatives, choose within any reasonable

time afterwards to dispute it.

(4) Per Knight Bruce, L.J. Kekewich v. Manning, 1 D. M. G. 176, 188.

(m) Leifchild's ca. 1 Eq. 231. (n) Llanelly Ry. & Dock Co. v. L. &N. W. Ry. Co. 8 Ch. 942.

enforced. Certain recent decisions have indeed shown a tendency to infringe on this rule by construing the circumstances of an incomplete act of bounty into a declaration. of trust, notwithstanding that the real intention of the donor was evidently not to make himself a trustee, but to divest himself of all his interest (o). But these have been disapproved in still later judgments which seem entitled to more weight (p).

(0) Richardson v. Richardson, 3 Eq. 686, Morgan v. Malleson, 10 Eq. 475.

(p) Warriner v. Rogers, 16 Eq. 340, Richards v. Delbridge, 18 Eq.

11, Moore v. Moore, ib. 474, Heartley v. Nicholson, 19 Eq. 233. Cp. Breton v. Woollven, 17 Ch. D. at p. 420.

CHAPTER V.

PERSONS AFFECTED BY CONTRACT.

General Rules as to Parties.

Original THE original and simplest type of contract is an agreetype of ment creating an obligation between certain persons. The contract. persons are ascertained by their description as individuals, and not by their satisfying any general class description: or, more shortly, they are denoted by proper names and not by class-names (a). And the persons who become parties in the obligation created by the agreement are the persons who actually conclude the agreement in the first instance, and those only. The object of this chapter will be to point out the extent to which modern developments of the law of contract have altered this primary type either by modifications co-extensive with the whole range of contract or by special classes of exceptions.

Legal effects

Tho fundamental notion from which we must take our departure is one that our own system of law has in common with the Roman system and the modern law of other civilized countries derived therefrom. A wide statement of it may be given in the shape of a maxim thus:

The legal effects of a contract are confined to the conconfined to tracting parties.

contract

ing

parties.

This, like most, if not all, legal maxims, is a generalization which can be useful only as a compendious symbol of

(a) Savigny, Obl. § 53 (2. 16), cp. on the subject of this chapter generally, ib. §§ 53-70, pp. 17-186.

maxim to

the particulars from which it is generalized, and cannot be understood except by reference to those particulars. The This first step towards the necessary development may be given be devein a series of more definite but still very general rules, loped. which we shall now endeavour to state, embodying at the same time those qualifications, whether of recent introduction or not, which admit of being stated in an equally general form.

tions.

We give some preliminary definition of terms which it Definiwill be convenient to use in extended or special senses. A contract creates an obligation between the contracting parties, consisting of duties on the one part and the right to demand the performance of them on the other.

ditor"

Any party to a contract, so far as he becomes entitled to "Crehave anything performed under the contract, is called the and creditor. So far as he becomes bound to perform anything "debtor." under the contract he is called the debtor.

senta

tion."

Representation, representatives, mean respectively succes- "Represion and the person or persons succeeding to the general ti rights and liabilities of any person in respect of contracts, whether by reason of the death of that person or otherwise. A third person means any person other than one of the "Third parties to the contract or his representatives (b).

person."

Rules. 1. The original parties to a contract must be Rules. persons ascertained at the time when the contract is made. Parties.

sons not

2. The creditor can demand performance from the debtor Third peror his representatives. He cannot demand nor can the bound. debtor require him to accept performance from any third person; but the debtor or his representatives may perform the duty by an agent.

(b) Contracts for the sale of land are enforceable in equity by and against the heirs or devisees of the

parties. But here the obligation is
treated as attached to the particular
property.

Third person not entitled.

Assignment.

Notice to debtor.

Equities.

Ехсерtions: Strictly personal duties.

3. No third person can become entitled by the contract itself to demand the performance of any duty under the contract.

Exception. Provisions contained in a settlement made upon and in consideration of marriage for the benefit of children to be born of the marriage, or, in the case of a woman marrying again, for the benefit of her children by any former marriage, may be enforced by the persons entitled to the benefit thereof (c).

4. Persons other than the creditor may become entitled by representation or assignment to stand in the creditor's place and to exercise his rights under the contract.

Explanation 1. Title by assignment is not complete as against the debtor without notice to the debtor, and a debtor who performs his contract to the original creditor without notice of any assignment by the creditor is thereby discharged.

Explanation 2. The debtor is entitled as against the representatives, and, unless a contrary intention appears by the original contract, as against the assignees of the creditor, to the benefit of any defence which he might have had against the creditor himself.

The following exceptions are given in order to complete the general statement. The further discussion of them however would not be relevant to the subject of this chapter. They are connected in principle with the cases of a contract for personal services or the exercise of personal skill becoming impossible of performance by inevitable accident, of which we speak in Chap. VII. below.

Exception 1. If it appears to have been the intention of the parties that the debtor should perform any duty in person, he cannot perform it by an agent, nor can performance of it be required from his representatives. Such

(c) See p. 199, below.