CONTRACTS.
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.
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.