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law, obligation, rights, contracts, watch, executory, sealed and distinction

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CONTRACT. Of the positive rules obeyed by men, in a society which has reached the stage in which we live, the greater part are made by contract; the lesser only are made by imperative law. Indeed, the speculative and philosophical writers of the 18th century on sociology and politics, under the influence of Montesquieu and Rousseau, were filled with a notion of a "social contract" as the origin of law. Obedient to the impulse thus given, they assumed that the form of contract resting upon the mere consent of the parties was the original. The assumption was the outcome of their reasoning that social development began with a state of nature, in which innocence and simplicity prevailed, to a state of increasing complexity and sophistica tion. Accordingly the simpler forms were believed to pertain to the older and more natural order of society. The history of contract shows the truth to be exactly opposite. Th.e °cere monial° contract, in which the failure to observe a mere technical formality was fatal to the obligation, is the real original. There ts nothing in early tittles like the interposition of law to compel the fulfilment of a mere promise. The idea of the State intervening to enforce obligations resulting from one man's reliance on the word of another was of slow growth, and its realization was one of the latest fruits of civil ization. Early law sanctioned only that prom ise which was solemnized by a prescribed cere monial; and, when duly solemnized, a promise became a contract, which the law recognized and would enforce, even though obtained through duress or deception. Informal engage ments the Roman lawyers called pacts, to dis tinguish them from °transactions with the copper and balance,° which alone were entitled to the name of °contracts.° The distinction is observed in our law to this day. The delivery of a clod of earth is no longer an essential in the conveyance of land, but deeds and sealed instruments in general are still differentiated from other contracts; and the distinction is not merely verbal—it is radical, setting °special ties,° as sealed contracts are called, in a class apart with respect to their legal validity as well as in their form. A °specialty° or sealed instru ment, for instance, °obtains validity from its form alone, not from the fact of agreement or consideration moving° ; it cannot be revoked af ter tender, even though the offer contained therein be not immediately accepted; and one who accepts the tender of a deed assumes the obligations therein imposed on him, even if he have given no expression to his intention to do so. Equity, of course, will give relief from a

contract by specialty when obtained by fraud, under duress, etc. All contracts not under seal are called parole contracts. A parole contract may be made in writing or orally. Another dis tinction which is usually made—that between executed and executory contracts—might prob ably be eliminated. When a man goes to a jew eler and buys a watch and pays for it, a contract has taken place, but it has been extinguished in the very act of making. He has the watch and the jeweler has the money ; each has acquired a right of possession and ownership: one to the cash and the other to the timepiece. These rights were created by a contract, to be sure, but a contractual obligation between them no longer exists,— neither party has any duty to perform to the other. An executed contract calls for no intervention of the law, though the law may.be appealed to for the protection of the parties in the rights thereby acquired. The jeweler might have warranted the watch, but that would be a new contract, superadded to the executed contract of sale. The purchaser might have.paid for the watch with counterfeit money, but in this event the vendor would have his choice betwe.en a reopening of the transaction, thereby making the contract of sale once more an executory cotttract, or he could pursue his remedy on the new right vested in him by the tort. of the vendee. This new right, however, having arisen from an obligation es delicto, the proceeding taken thereon would not be for the enforcement of a contract. The law of con tracts, strictly spealcing, is concerned only with promises or agreements which remain to be performed in whole or in part—in a word with executory contracts. The very definition of a contract, as °an agreement which creates an obligation,° implies the exclusion of agreements all the conditions of which have been fulfilled and which have resulted in the creation of rights in rent. An obligation which has been per formed is no longer an obligation. A more appropriate distinction than that between. ex ecuted and executory agreements would be one between contracts which create rights in rem, such as rights of possession and ownership enforcible against the whole world, and those which create rights in personam, enforcible only against the person obligated.

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