c. Contract is sometimes used in the wide sense of any bilateral act in the law. Holland, pp. 225, 226. This, however, is very unusual, and it is certainly better to use agreement in this sense. Contract, being derived from contrahere, involves the idea of binding two persons together by the vinculum juris of an obligation. An assignment is not a contract, and a release is the very reverse of a contract.
d. There remains the usage suggested and adopted in the text. An agreement is a bilateral act in the law. Est pactio duorum pluriumve in idem placitum et consensus. D. 2. 14. 1. 2. A contract, on the other hand, is that particular kind of agreement which is intended to create a right in personam between the parties. This is the distinction adopted by Sir W. Anson in his work on Contracts, p. 2: “Contract is that form of agreement which directly contemplates and creates an obligation.” So Pothier, Traité des Obligations, sect. 3; L’espèce de convention qui a pour objet de former quelque engagement est celle qu’on appelle contrat. Cf. French Civil Code, Art. 1101. The Germans use Vertrag as equivalent to agreement in this sense; while a contract is obligatorischer Vertrag, or Vertrag in a narrower sense. Savigny, System, sect. 141. Puchta, sect. 271. Dernburg, Pandekten, I. sect. 92.
[308]. Middleton v. Pollock, 2 Ch. D. 104; Sharp v. Jackson, (1899) A. C. 419.
[309]. The terms unilateral and bilateral possess another signification distinct from that which is attributed to them in the text. In the sense there adopted all agreements are bilateral, but there is another sense in which some of them are bilateral and others unilateral. An agreement is bilateral, in this latter signification, if there is something to be done by each party to it, while it is unilateral if one party is purely passive and free from legal obligation, all the activity and obligation being on the other side. An agreement to lend money is bilateral, while an agreement to give money is unilateral.
[310]. D. 50, 17. 69.
[311]. Summa, 2. 2. q. 57. art. 2.
[312]. In respect of the efficacy of contracts, there is a special case which requires a word of notice. A contract may be neither void nor voidable, but yet unenforceable. That is to say, no action will lie for the enforcement of it. The obligation created by it is imperfect. See ante, § 78. An example is a verbal contract which ought to be in writing under the Statute of Frauds.
[313]. D. 50. 17. 45. 1.
[314]. Cundy v. Lindsay, 3 A.C. 459; Raffles v. Wichelhaus, 2 H. & C. 906.
[315]. King v. Smith, (1900) 2 Ch. 425.