PARTIES.
Remedy. The foundation of the common law of contracts may be said to be the giv ing of damages for the breach of contracts. When the thing to be done is the payment of money, damages paid in money are en tirely adequate. When, however, the con than a money remedy : it has no power to enforce a specific performance of the con tract.
The injustice of measuring all rights and wrongs by a money standard, which as a. remedy is often inadequate, led to the estab lishment of the equity power of decreeing specific performance when the remedy has failed at law. For example: contracts for the sale of real estate will be specifically en forced in equity ; performance will be de creed, and conveyances compelled.
Where a contract is for the of the contracting party, no action can be main tained by a third person who is a stranger to the contract and the consideration; Free man v. IL Co., 173 Pa. 274, 33 Atl. 1034.
As to signing a contract without reading it,.
see SIGNATURE.
See ACCEPTANCE; ' AGREEMENT ; BREACH;. CONSIDERATION; CONTRACTUAL LETTER ; NOVATION; OFFER ; PAYMENT; PER FORMANCE; SATISFACTION; STATUS.
For the early history of parol contracts, see Ames, 3 Sel. Essays in Anglo-Amer. L. H. 304 ; Salmond, id. 321.
See IMPAIBINO OBLIGATION OF A CONTRACT; THIRD PARTIES, CONTRACTS FOB.
In Roman and Mediceval Law. "Formal contracts (logitimce conventiones) gave a right of action ir respective of their subject matter. In Justinian's time the only form of contract in use was the Stip ilation or verbal question and answer. Its origin ie believed to have been religious, though the precise manner of its adoption remains uncer tain. It appears as a formal contract capable of being applied to any kind of Subject matter. Its application was in time extended by the following. steps: 1. The question and answer were not re quired to be in Latin. 2. An exact verbal corre spondence between them was not necessary. 3. An instrument in writing purporting to be the record of a Stipulation was treated as strong evidence of the Stipulation having taken place.. Hence the mediteval development of operative writings. "Informal agreements (pasta) did not give any right of action without the presence of something more than the mere fact of the agreement. This something was called ca.usa. Practically the term covers a somewhat wider ground than our modern 'consideration executed' ; but it has no general notion corresponding to it, at least none co-exten sive with the notion of contract ; it is simply the mark which distinguishes any particular class from the common herd of pacts and makes them ac tionable. Informal agreements not coming within any of the privileged classes were called nude pacts and could not be sued on. The term nudum pactum is sometimes used however with a special and rather different meaning to express the rule that a con tract without delivery will not pass property. "The further application of, this metaphor by speaking of the cause when it exists as the clothing or vesture of the agreement is without classical authority, but very common ; it is adopted to the full extent by our early writers.
"The privileged informal contracts were tbs fol lowing: 1. Real contracts, where the cause con sisted in the delivery of money or goods; namely, mutui datio, commodatum, depositum, Piatlus, cor responding to our bailments. This class was ex panded within historical times to cover the so-called innominate contracts denoted by the formula de IS des, etc. 2. Consensual contracts, being contracts of constant occurrence in daily life in which nO catia was required beyond the nature of the contract itself. Four such contracts were recognized, the first three of them at all events, from the earliest times from which we knew anything, namely, Sale, Hire, Partnership, and Mandate (Emptio Venditio, Locatio Conductio, Societas, Mandatum). To this class great additions were made in later times. Subsidiary contracts (pacta adiecta) entered into at the same time and in connection with contracts of on already enforceable class became likewise en forceable ; and divers kinds of informal contracts were specially made actionable by the Edict and by imperial constitutions, the most material of these being the constitutum covering the English heads of •account stated and guaranty. Justinian added the pactum donationis, it seems with a special view to gifts to pious uses. Even after all these exten sions, however, matters stood thus: 'The Stipula tion, as the only formal agreement existing in Jus tinian's time gave a right of action. Certain par ticular classes of agreements also gays a right of action even if informally made. All other informal agreements (nuda pacta) gave none. This last proposition, that nuda pacta gave no right of action, may be regarded as the most characteristic princi ple of the Roman law of Contract.' (Say. Obl. 2, 231.) It is desirable to bear in mind that in Roman and also in early English law-text nudum pactum does not mean an agreement without consideration. Many nuda pacta according to the classical Roman law would be quite good in English law, as being made on sufficient consideration ; while in many cases obligations recognized by Roman law as fully binding (e..g. from mandate or negotiorum gestic)) would be unenforceable as being without considera tion, in the common law.
" . . In Western Christendom the natural ob ligation admitted to arise from an informal agree ment was gradually raised to full validity, and the .difference between pactum and legitima conventio ceased to exist. The process however was not com pleted until English law had already struck out its own line.
"The identification of Stipulation with formal complete on the Continent not later than the 9th Century, was adopted by our medieval au thors." Pollock, Contracts 743.