No. 571.

Book 2, part 2, tit. 4, chap. 1.

No. 572.

parties actually litigating in the cause, but upon all others, because all who had an interest might have appeared and asserted their rights. (a) But if the points decided by a foreign prize court are ambiguous, they may be examined. (b) And, until the admiralty has exercised its jurisdiction, the question of property is open for the application of the principles of the common law. (c)

TITLE IV. OF THE MANNER OF ACQUIRING PROPERTY BY CONTRACT.

CHAPTER I.-GENERAL RULES.

571. The next mode of acquiring a derivative title to property is, by contract or by obligations arising from agreements. This is the most important and most frequent way of acquiring title to property. The variety of agreements is very great, their kind is extremely varied, the rules which concern them are very extended, and very different from each other in the several kinds of contracts. There are some rules, however, which apply to all kinds of contracts.

572. Various definitions have been given of the word contract, either of which perhaps conveys the true idea of the word. A contract, according to Pothier, (d) is a convention or agreement by which two or more persons consent to form, between themselves, some lawful and binding engagement, or to rescind a preceding one, or to modify it. stone (e) defines it to be an agreement upon a sufficient consideration to do or not to do a particular thing. A contract has also been defined to be a compact between two or more persons. (f)

Black

(a) Cherriot v. Poussat, 3 Binn. 220; Sheaf v. 70 hogsheads, etc. of sugar, Bee, 163; Armroyd v. Williams, 2 Wash. C. C. 508.

(b) Vasse v. Ball, 2 Yeates, 178.

(c) Jenkins v. Putnam, 1 Bay, 8.

(d) Des Oblig. n. 3.

(e) 3 Comm. 442.

(f) Fletcher v. Peck, 6 Cranch, 136. See Civ. Code of Lo. art. 1754; Code Civ. 1101; 1 Pow. on Contr. 6.

No. 573.

Book 2, part 2, tit. 4, chap. 2.

No. 576.

573. Every contract imposes upon the contractor an obligation to do or to give something according to the law of the land. All obligations derive their force from the law, and therefore every obligation supposes a superior law which binds us to the performance. It is owing to this that the rule has been established that a lawful contract is considered as the law of the parties.

574. The intent of a contract is to form an obligation or engagement. In the engagement which arises from a contract we may distinguish two things very different in themselves, namely:

1st. The obligation of him who makes the promise and who fulfils a duty in executing it.

2d. The right of him who accepts the promise. The right consists in the faculty of enforcing the fulfilment of the promise in a court of justice. Duty and right, then, are correlative, and cannot exist without each other. One cannot be obligated or bound by the contract, if another cannot enforce him to accomplish his obligation or engagement.

575. He toward whom the obligation has been contracted is called the obligee or creditor; and he who is bound to fulfil it is the obligor or debtor.

CHAPTER II.-OF THE ESSENTIAL CONDITIONS OF A CONTRACT.

576. Having given some general rules relating to contracts, it will be proper now to examine the conditions essential to their validity. They are, 1, the agreement of the party who obligates himself to become bound, and the consent of the party toward whom the obligation is formed to accept it; 2, the capacity of the parties; 3, a thing which is the object of the agreement; and 4, a lawful consideration for the obligation.

There are some general rules as to the forms of contracts, but they are not always requisite to be observed in order to their validity; form frequently is

No. 577.

Book 2, part 2, tit. 4, chap. 2, sec. 1, § 1.

No. 578.

of little consequence, and substance is every thing. There is a great difference between an agreement in writing, a deed, for example, and the contract which it is intended to secure. The deed may be perfectly formal and good, and the contract may be absolutely void; as, where a man's bond is obtained by fraud, the bond may be good, and, on account of duress or fraud, the contract may be void. This distinction must always be kept in view in considering all contracts. And, on the other hand, the agreement may be good, and the instrument to secure its performance may be imperfect; as, for example, when a man lends another a sum of money which is to be secured by bond, and it is to be returned in one year, and the paper intended as a bond has not been sealed.

SECTION 1.-OF THE CONSENT OF THE PARTIES.

§ 1.-How consent is to be manifested.

577. Consent is an agreement to something proposed by another; it differs from assent, which is an acquiescence in something that has been done. (a) In a contract two things may be distinguished, the proposition or offers by one of the parties, and the acceptance by the other: duorum in idem placitum consensus. The contract begins by the offer or proposition; it is completed by the acceptance.

578. The party who makes the offer has a right to recall it until the other has acquired a right to prevent him, and, in general, this right can be acquired only by acceptance. Although the will of the owner is sufficient to divest him of his right, that alone has not the effect to transfer it to another. It is by the acceptance of the offer that there is a union of minds, an agreement.(b)

But from the moment of the acceptance of an offer, the

(a) Wolff, part 1, § 27, 30; Pard. Dr. Com. n. 138.

(b) Tucker v. Wood, 12 John. 190; Bower v. Blessing, 8 S. & R. 243.

No. 579.

Book 2, part 2, tit. 4, chap. 2, sec. 1, § 1.

No. 580.

will of the person who offered, who till then was free to retract his offer, is irrevocably bound by necessity: contractus sunt ab initio voluntatis, ex post facto necessitatis.

When the acceptance of an offer is made without condition, the contract is complete ;(a) but when it is made with a condition, in general there is no binding contract. For example, I offer to sell you a thousand bushels of wheat, at a certain price, in cash, and you accept my terms, but on condition that I will take a good endorsed note at sixty days, there is no contract between us.(b)

But there are some cases where, although the offer and the acceptance be not the same, yet there is a valid contract: for example, A, a merchant of Philadelphia, writes to B, a merchant in Cincinnati, and offers him four cents per pound for one hundred barrels of pork, and, on the same day, B writes to A, offering to sell him one hundred barrels of pork at three cents and a half per pound, and the letters, which cross each other, are received by the parties, the contract is complete, and A shall pay B three and a half cents per pound, for the greater includes the less. (c)

579. The acceptance may be made by a separate paper, as between parties who are separated and contract by letter, and questions then arise as to when the acceptance is complete, whether immediately upon its being made, or whether it must be communicated to the other party. The rule is, that it must be communicated to the party offering.(d)

580. But the consent to bind the parties need not be express in all cases, it may be implied. It may be

(a) Mactier v. Frith, 6 Wend. 103.

(b) Tuttle v. Love, 7 John. 470; Eliason v. Henshaw, 4 Wheat. 225; Bruce v. Pearson, 3 John. 534.

(c) Poth. Vente, n. 26; Brown on Sales, § 223.

(d) Thayer v. Middlesex Fire Ins. Co., 10 Pick. 326; 4 Wheat. 225: McCullock v. Eagle Ins. Co., 1 Pick. 278; Slaymaker v. Irwin, 4 Whart.

No. 581.

Book 2, part 2, tit. 4, chap. 2, sec. 1, § 2, 3.

No. 582.

manifested by signs, by acts, or even by silence. A nod, a shake of the hands, have always been signs of consent; indeed, there is a contract which, owing to its being consummated in this manner, is called a handsale: venditio per mutuam manuum complexionem.(a) And silence, when a man is bound to speak, gives consent.(b)

§ 2. Of the want of consent in consequence of a mistake.

581. When there is a mistake, either as to the person or the thing which is the subject of the contract, it is evident there is no agreement. When the error is respecting the substance of the thing which is the subject of the contract, the agreement is null,(c) but when it falls merely on a quality of that thing, the contract is valid. It is not in general the quality, but the substance of the thing which is the object of the agreement. But there are some qualities which are considered as forming the substance of the thing; as for example, if I sell you a gold watch, both of us believing that the watch shown you is of gold, you are not bound to take the watch if it be only copper gilt over.(d)

§3.-Duress destroys the consent given.

582. By duress is meant an actual or threatened violence, or restraint of a man's person contrary to law, to compel him to enter into a contract, or to discharge

one.

Violence and duress annul the consent; it is evident that there is no consent when physical violence has been used over a person to constrain him to do an act.

(a) 2 Bl. Com. 448.

(b) Moore v. Smith, 14 S. & R. 393; 1 Greenl. Ev. § 197, 198, 199. (c) Hitchcock v. Giddings, 4 Price, 135; Allen v. Hammond, 11 Pet. 63; Poth. Vente, n. 4.

(d) 1 Poth. Ob. n. 18. See Williams v. Spafford, 8 Pick. 250; Gardiner v. Gray 4 Campb. 144; Shepherd v. Kain, 5 B. & Ald. 240; Chandelor v. Lopus, Cro. Jac. 4.