KFLCC Kingdom Law 2nd Ed.

262

CONTRACT

CONTRACT

(such as a lease of land for years) is called a "real" contract. 3 Coke, 22a. Certain and hazardous. Certain contracts are those in which the thing to be done is sup posed to depend on the will of the party, or when, in the usual course of events, it must hap pen in the manner stipulated. Hazardous con tracts are those in which the performance of that which is one of its objects depends on an uncertain event. Civ. Code La. 1769. Commutative and independent. Com mutative contracts are those in which what is done, given, or promised by one party is con sidered as an equivalent to or in consideration of what is done, given, or promised by the oth er. Civ. Code La. 1761; Ridings v. Johnson, 128 U. S. 212, 9 Sup. Ct. 72, 32 L. Ed. 401. Independent contracts are those in which the mutual acts or promises have no relation to each other, either as equivalents or as considera tions. Civ. Code La. 1762. Gratuitous and onerous. Gratuitous con tracts are those of which the object is the bene fit of the person, with whom it is made, with out any profit or advantage received or prom ised as a consideration for it. It is not, how ever, the less gratuitous if it proceed either from gratitude for a benefit before received or from the hope of receiving one hereafter, al though such benefit be of a pecuniary nature. Onerous contracts are those in which something is given or promised as a consideration for the engagement or gift, or some service, interest, or condition is imposed on what is given or promised, although unequal to it in value. Civ. Code La. 1766, 1767; Penitentiary Co. •. Nelms, 65 Ga. 505, 38 Am. Rep. 793. Mutual interest, mixed, etc. Contracts of "mutual interest" are such as are entered into for the reciprocal interest and utility of each of the parties; as sales, exchange, part nership, and the like. "Mixed" contracts are those by which one of the parties confers a ben efit on the other, receiving something of in ferior value in return, such as a donation sub ject to a charge. Contracts "of beneficence" are those by which only one of the contracting par ties is benefited; as loans, deposit and mandate. Poth. Obi. 1, 1, 1, 2. A conditional contract is an executory con tract the performance of which depends upon a condition. It is not simply an executory con tract, since the latter may be an absolute agree ment to do or not to do something, but it is a contract whose very existence and performance depend upon a contingency. Railroad Co. v. Jones, 2 Cold. (Tenn.) 584 \ French v. Osmer, 67 Vt. 427, 32 Atl. 254. Constructive contracts are such as arise when the law prescribes the rights and liabil ities of persons who have not in reality entered into a contract at all, but between whom cir cumstances make it just that one should have a right, and the other be subject to a liability, similar to the rights and liabilities in cases of express contract. Wickham v. Weil (Com. PI.) 17 N. Y. Supp. 518; Graham v. Cummings, 208 Pa. 516, 57 Atl. 943; Robinson v. Turrentine (C. O.) 59 Fed. 559; Hertzog v. Hertzog, 29 Pa. 465. Personal contract. A contract relating to personal property, or one which so far involves the element of personal knowledge or skill or personal confidence that it can be performed on ly by the person with whom made, and there fore is not binding on his executor. See Janin v. Browne, 59 Cal. 44. Special contract. A contract under seal; a specialty; as distinguished from one merely oral or in writing not sealed. But in common usage this term is often used to denote an ex press or explicit contract, one which clearly defines and settles the reciprocal rights and obligations of the parties, as distinguished from

sides. The entire fulfillment of the promise by either is a condition precedent to the fulfillment of any part of the promise by the other. When ever, therefore, there is a contract to pay the gross sum for a certain and definite considera tion, the contract is entire. A severable con tract is one the consideration of which is, by its terms, susceptible of apportionment on ei ther side, so as to correspond to the unascer tained consideration on the other side, as a contract to pay a person the worth of his services so long as he will do certain work; or to give a certain price for every bushel of so much corn as corresponds to a sample. Potter v. Potter, 43 Or. 149, 72 Pac. 702; Telephone Oo. v. Root (Pa.) 4 Atl. 829; Horseman v. Horseman, 43 Or. 83, 72 Pac. 698; Norrington v. Wright (C. C.) 5 Fed. 771; Dowley v. Schiffer (Com. PL) 13 N. Y. Supp. 552; Osgood v. Bauder, 75 Iowa, 550, 39 N. W. 887, 1 L R. A. 655. Where a contract con sists of many parts, which may be considered as parts of one whole, the contract is entire. When the parts may be considered as so many distinct contracts, entered into at one time, and expressed in the same instrument, but not there by made one contract, the contract is a sep arable contract. But, if the consideration of the contract is single and entire, the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items. 2 Pars. Cont. 517. Parol. All contracts which are not contracts of record and not specialties are parol contracts. It is erroneous to contrast "parol" with "writ ten." Though a contract may be wholly in writing, it is still a parol contract if it is not under seal. Yarborough v. West, 10 Ga. 473; Jones v. Holliday, 11 Tex. 415, 62 Am. Dec. 487: Ludwig v. Bungart, 26 Misc. Rep. 247, 56 N. Y. Supp. 51. Joint and several. A joint contract is one made by two or more promisors, who are joint ly bound to fulfill its obligations, or made to two or more promisees^ who are jointly en titled to require performance of the same. A contract may be "several" as to any one of several promisors or promisees, if he has a legal right (either from the terms of the agree ment or the nature of the undertaking) to en force his individual interest separately from the other parties. Rainey v. Smizer, 28 Mo. 310; Bartlett v. Bobbins, 5 Mete. (Mass.) 186. Principal and accessory. A principal con tract is one which stands by itself, justifies its own existence, and is not subordinate or auxili ary to any other. Accessory contracts are those made for assuring the performance of a prior contract, either by the same parties or by others, such as suretyship, mortgage, and pledges. Civ. Code La. art. 1764. Unilateral and bilateral. A unilateral contract is one in which one party makes an express engagement or undertakes a perform-' ance, without receiving in return any express engagement or promise of perfonnance from the other. Bilateral (or reciprocal) contracts are those by which the parties expressly enter into mutual engagements, such as sale or hire. Civ. Code La, art. 1758; Poth. Obi. 1, 1, 1, 2; Montpelier Seminary v. Smith, 69 Vt. 382, 38 Atl. 66; Laclede Const. Co. v. Tudor Iron works, 169 Mo. 137, 69 S. W. 388. Consensual and real. Consensual con* tracts are such as are founded upon and com pleted by the mere agreement of the contracting parties, without any external formality or sym bolic act to fix the obligation. Real contracts are those in which it is necessary that there should be something more than mere consent, such as a loan of money, deposit or pledge, which, from their nature, require a delivery of the thing, (res.) Inst. 3, 14, 2; Id. 3, 15; Halifax, Civil Law, b. 2, c. 15, No. 1. In the common law a contract respecting real property