Page images
PDF
EPUB

contracts to a greater or less extent are executory. When they cease to be so, they cease to be contracts.

15. Void and voidable contracts.

An agreement which produces no legal obligation is often called a void contract. Though the phrase is often convenient, it is a contradiction in terms. If the agreement is void it is not a contract. A voidable contract, however, is common in the law. Infancy, fraud, mistake, duress, some kinds of illegality, all afford ground for rescinding or refusing to perform a contract. Unless rescinded, however, a voidable contract imposes on the parties the same obligations as if it were not voidable. Some distinctions in different kinds of contracts which are called voidable are hereafter noticed.48

§ 16. Unenforceable contracts.

Agreements which are neither void nor voidable may, nevertheless, be unenforceable by one or both parties. If such contracts produced no legal consequences whatever, they would not be contracts at all. If either or both parties had the right to avoid them at will, they would properly be described as voidable. But there is another class of agreements which though not enforceable by ordinary legal remedies may, nevertheless, produce certain legal consequences for the parties to them. Such agreements are sometimes called agreements of imperfect obligation; 49 but they may also be called unenforceable contracts. A contract may be unenforceable because (1) no ordinary remedy is provided by the law for obligations of such a character; (2) because some prerequisite for the full validity of the obligation has not been performed; (3) because the remedy has been lost. Illustrations of the first type are contracts with a government. These are enforceable against the government only so far as it chooses; and yet such contracts are recognized by the law, and produce certain legal consequences.50 Other illustrations are found in England in

48 See infra, § 683.

49 Pollock on Contracts (8th ed.), 682.

1

50 For instance, a trustee in bank

ruptcy of one who had contracted with the government would be entitled to receive such performance of the contract as the government was willing to

51

the right of barristers to compensation for their services." Illustrations of the second type of case may be found in contracts within the Statute of Frauds. The Statute does not render the original contract void, but a right of action is denied against either or both parties while the requirements of the statute are not complied with. | The third type of case is illustrated by Statutes of Limitations, which though they bar a right of recovery do not prevent the law from recognizing in various ways the existence of a contract.52 Certain illegal contracts may also be classed as unenforceable by one or both parties rather than as void or voidable, since legal effects are often produced by such contracts and their avoidance does not always depend upon the wishes of the parties. 53

render. The performance by the government would not be regarded as a voluntary gift to the contractor (in which case the trustee would not be entitled to it), although the government's performance took place subsequent to the bankruptcy. See Williams v. Heard, 140 U. S. 529, 35 L. Ed. 552; Butler v. Goreley, 146 U. S. 303, 36 L. Ed. 981; Price v. Forest, 173 U. S. 410, 43 L. Ed. 749; Calder v. Henderson, 54 Fed. 802, 4 C. C. A. 584; Cf. Blagge v. Balch, 162 U. S. 439, 40 L. Ed. 1032; Briggs v. Walker,

171 U. S. 466, 43 L. Ed. 243, 19 Sup. Ct. 1.

51 See Pollock on Contracts (8th ed.), 712.

52 Consider, e. g., the effect of a new promise to pay a barred debt, infra, §160 et seq. Also that the payment of

a barred debt by an insolvent debtor is not a fraudulent conveyance, since the creditor is recognized as entitled to the money. 14 Am. & Eng. Cyc. of Law (2d ed.), 226.

Also other incidental effects exist. 53 See infra, §§ 1628-1632.

[blocks in formation]

Although formal contracts are historically the earlier, simple contracts at the present time are of much greater importance. Furthermore the rules applicable to simple contracts have been borrowed to a greater or less extent by the law governing formal contracts. It, therefore, seems wise in considering the formation of contracts to disregard historical order and first to consider simple contracts.

§ 18. Requirements for the formation of a simple contract. The requirements for the formation of a simple contract are: (1) Parties of legal capacity; (2) an expression of mutual assent of the parties to a promise, or set of promises, (3) an agreed valid consideration. The agreement must also not be declared void by statute or common law. The requirement last enumerated has often been too broadly stated; namely, that the agreement must not be illegal. But all illegal contracts are not void.1 Possibility of performance, which is also stated by some writers as requisite 2 does not seem essential. Parties may contract to do something which is impossible, if they wish

1 See infra, § 1630.

2 See, e. g., Holland, Jurisprudence (9th ed.), 252.

to do so, though, doubtless if they know of the impossibility, it will generally be assumed that they do not. Two other supposed requirements have also been suggested: Genuineness of consent, and intent to contract. These do not seem to be properly classed as essential, for the reasons stated in the following sections.

§ 19. Legality of contract.

5

A writer whose work on contracts has had great currency,4 enumerates as requisite for the formation of contract the legality of the object which the contract proposes to effect, and this statement has often been copied or the statement made that illegal contracts are void. It would seem that the legality of the object for which a contract was formed is of no greater importance than the legality of the consideration for which the promise was given. Illegality in either respect will generally preclude enforcement of the contract, but the subsequent discussion of the subject of illegality will indicate that by no means all illegal agreements are void or, so far as one party to them is concerned, even unenforceable. The effect of illegality undoubtedly often is to make the contract unenforceable by both parties, and almost always to make it unenforceable by one party. But as illegal contracts are not infrequently enforceable by one party to them, and sometimes by both parties, it is obvious that legality is not one of the absolute requisites for the formation of contracts, though doubtless by statute a forbidden agreement may be declared absolutely void.

§ 20. Genuineness of consent.

The writer referred to in the preceding section has also stated as a requirement for the formation of contracts genuineness or reality of consent of the parties, and under this heading has included the subject of mistake, misapprehension, fraud, duress, and undue influence. But this supposed requirement for the formation of contracts is no real

See the following section.

Sir William Anson, Principles of the English Law of Contracts.

also Holland, Jurisprudence (9th ed.), 252.

See

5 See infra, § 1630.

« ՆախորդըՇարունակել »