Contracts/Formal requisites: Difference between revisions
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== Writing == | == Writing == | ||
===Necessity for=== | |||
The only formal contract in common law was the contract under seal, all others being parol contracts, depending for their validity on consideration, whether they are by word of mouth or in writing.<ref>Valdes Hotel Co. v. Ferrell, 17 Ga. A. 93, 86 SE 33 3 ; Quigly v. Muse, 15 La. Ann. 197; Stabler v. Cowman. 7 Gill & J. (Md.) 284; Ludwig v. Bungart, 26 Misc. 247. 56 NYS 51 [rev on other grounds 48 App. Dlv. 613. 63 NYS 91].<br /><br /> | |||
See [[Contracts/Consideration|Consideration]].</ref> The only contracts which, in the absence of a statute, are required to be in writing, outside of those requiring a seal, are bills of exchange and promissory notes; other contracts may be verbal.<ref>Del.-Jones v. Tucker, 26 Del. 422. 84 A 1012.<br /><br /> | |||
Ky.-John King Co. v. Louisville. etc . , R. Co., 131 Ky. 46, 1 1 4 SW 308 [reb den 116 SW 1201].<br /><br /> | |||
Mich.-Mall, etc., Co. v. Wood, 140 Mich. 505, 1 03 NW 864.<br /><br /> | |||
N. Y.-Sackett v. Sackett, 14 NYS 251.<br /><br /> | |||
Oh.-Merrlck y. Di tzler, 91 Oh. St. 256. 110 NE 493.</ref> The parties instead of reducing an agreement to writing may adopt the terms of an existing written contract.<ref>American Colortype Co. v. Continental Colortype Co., 188 U. S. 104. 23 SCt 265. 47 L. ed. 404; Butler v. Tifton, etc., R. Co., 121 Ga. 817, 49 SE 763; International Power Co. v. Hardy, 118 Ga. 512, 46 SE 311; Florida, etc., R. Co. v. Varnedoe, 81 Ga. 175. 7 SE 129; Valdes Hotel Co. v. Ferrell, 17 Ga. A. 93. 86 SE 333; Walton-Wilson-Rodes Co. v. McKitrick, 141 Ky. 415, 132 SW 1046.<br /><br /> | |||
'''Incorporation of terms by reference''' see [[Contracts/Construction and Operation#Papers Annexed or Referred to|Construction and Operation § Papers Annexed or Referred to]].</ref> It is within the power of the legislature to require contracts to be in writing,<ref>Wyatt v. Wanamaker, 126 App. Div. G56, 111 NYS 90 [aff 58.Misc. 429, 110 NYS 900]; Wyatt v. McCreery, 126 App. Dlv. 650, 111 NY.S 86.<br /><br /> '''[a] Philippines.'''-When the essential requisites for the existence of a contract are present, the contract is binding on the parties whatever may be the amount involved, and, although required to be in writing by Civ. Code art. 1280, plaintiff can maintain an action on the verbal agreement without first bringing an action under art. 1279 to compel the execution of a written instrument. See Thunga Chui v. Que Bentec, 2 Philippine 561.<br /><br /> | |||
'''[b] Porto Rico.'''- | |||
# Under the provisions of the former civil code contracts involving more than a certain amount were required to be in exwriting. Civico v. Rodriguez, 4 Porto Rico 296. | |||
# This provision did not affect the validity of contracts between the parties. Bigelow v. Porto Rico Planters' Co., 7 Porto Rico Fed. 463.</ref> and the parties cannot agree that contracts which the law requires to be in writing shall be valid although in parol.<ref>Northwestern Nat. Ins. Co. v. Avant, 132 Ky. 106, 116 SW 274.</ref> Where statutory power is given to certain persons to make contracts, this does not require that the contract shall necessarily be in writing to bind them.<ref>Austin v. Foster, 9 Pick. (Mass.) 341; Central Lunatic Asylum v. Flanagan, 80 Va. 110.</ref> | |||
===Where Writing Essential Outside of Statutes=== | |||
An agreement may he good by word of | |||
mouth, and yet if it is the intention of the parties | |||
that it shall not be binding until put in writing, | |||
there can be no enforceable. agreement until that | |||
is done, for even a written memorandum of a contract | |||
to be subsequently drawn up and signed is | |||
not an enforceable agreement.61 And the parties | |||
may contract between themselves that no agree | |||
ment in regard to future transactions between them | |||
shall be binding on them unless the agreement is | |||
made in writing.0 It must fllso be remembered that | |||
there is a general rule of .etidence, of far-reaching | |||
importance, that evidence of an oral agreement is | |||
not admi11sible to contradict or to add to the terms | |||
of a written contract.• | |||
===Form of Language=== | |||
':fu make an enforceable | |||
agreement in 'writing no particular form | |||
of word!J is essential." The intention of the parties is alone looked to, and the use of inapt words or | |||
bad English will not afi'eet the validity of the agreement, | |||
66 although it may affect its construction.64 | |||
And even a writing in the form of a receipt may | |||
contain .words showing a contract.61 Yet every | |||
writing, although signed by one or both of the parties, | |||
is not to be construed as an agreement,64 as, | |||
, for example, a mere schedule of prices for work | |||
and materials.68 A contract to repay money may | |||
be implif:d from an acknowledgment that it is due | |||
and owing.80 | |||
===Agreement in Several Writings=== | |||
An | |||
agreement may be collected from several different | |||
writings which, wh4?n connected, show the parties, | |||
subject matter, terms, and consideration,81 as'in the | |||
ease of contracts entered into by correspondence ;82 | |||
but the rule that, where a written contract is in | |||
several parts and all are executed at the same time | |||
it is but one contract, cannot be applied to separate | |||
and distinct papers executed and signed by different parties and imposing different obligations | |||
on the parties executing them." And where a person | |||
sends to another two written instruments purporting | |||
to be counterparts of a proposed eontraet, | |||
but which differ materially, and asks him to a�ept | |||
and return the duplicate, and he signs but one of | |||
the instruments and returns it, this is the eontraet | |||
between them.s. A written agreement of which | |||
there are two copies, one signed by e ach of the parties, | |||
is binding on both to the same exten t as if | |||
there had been only one copy of the agreement and | |||
both had signed it,115 but there is no agreement | |||
where the two copies differ in a material point.• | |||
Where a contract is to be executed· in du plicate, it | |||
becomes effective as soon as one of the copies is | |||
nec uted by both parties.81 Duplicate contracts are | |||
treated as originals, although the parties may han | |||
ehosen to call one "original copy" and the other | |||
"duplicate copy.',., | |||
===Agreement Partly Written and Partly Oral=== | |||
An agreement may be partly in writ | |||
ing and partly by word of mouth ;• such an agreement | |||
i.s io be treated as an oral contract. 70 Further | |||
a contract may be in writing as to one party and | |||
oral as to the other, as where a person makes his | |||
offer in writing and the other party accepts orally | |||
or vice '\'ersa;n su ch a c ontract is to be regarded as | |||
a written contract; 73 and the same is true where an | |||
instrument which purports to set forth the mutual | |||
obligations of a contract is signed by but one party | |||
and i.s aeeepted and ael!ed on by the other.73 But | |||
this principle is not applie'able to the draft of a | |||
proposed contract not signed by either of the | |||
parties.74 | |||
== Signing == | == Signing == | ||
Revision as of 05:16, August 21, 2020
Seal
A contract under seal is a contract to which the seal of the party or parties executing it is affixed, and which derives its validity from its form alone, and not from the fact of agreement[1] to or from consideration[2] A contract under seal is necessary at common law where the promise is without consideration, and in many jurisdictions conveyances of land and certain other contracts are required by statute to be under seal. Contracts under seal are treated under other titles. Contracts under seal are also known as specialties.[3]
Writing
Necessity for
The only formal contract in common law was the contract under seal, all others being parol contracts, depending for their validity on consideration, whether they are by word of mouth or in writing.[4] The only contracts which, in the absence of a statute, are required to be in writing, outside of those requiring a seal, are bills of exchange and promissory notes; other contracts may be verbal.[5] The parties instead of reducing an agreement to writing may adopt the terms of an existing written contract.[6] It is within the power of the legislature to require contracts to be in writing,[7] and the parties cannot agree that contracts which the law requires to be in writing shall be valid although in parol.[8] Where statutory power is given to certain persons to make contracts, this does not require that the contract shall necessarily be in writing to bind them.[9]
Where Writing Essential Outside of Statutes
An agreement may he good by word of mouth, and yet if it is the intention of the parties that it shall not be binding until put in writing, there can be no enforceable. agreement until that is done, for even a written memorandum of a contract to be subsequently drawn up and signed is not an enforceable agreement.61 And the parties may contract between themselves that no agree ment in regard to future transactions between them shall be binding on them unless the agreement is made in writing.0 It must fllso be remembered that there is a general rule of .etidence, of far-reaching importance, that evidence of an oral agreement is not admi11sible to contradict or to add to the terms of a written contract.•
Form of Language
':fu make an enforceable agreement in 'writing no particular form of word!J is essential." The intention of the parties is alone looked to, and the use of inapt words or bad English will not afi'eet the validity of the agreement, 66 although it may affect its construction.64 And even a writing in the form of a receipt may contain .words showing a contract.61 Yet every writing, although signed by one or both of the parties, is not to be construed as an agreement,64 as, , for example, a mere schedule of prices for work and materials.68 A contract to repay money may be implif:d from an acknowledgment that it is due and owing.80
Agreement in Several Writings
An agreement may be collected from several different writings which, wh4?n connected, show the parties, subject matter, terms, and consideration,81 as'in the ease of contracts entered into by correspondence ;82 but the rule that, where a written contract is in several parts and all are executed at the same time it is but one contract, cannot be applied to separate and distinct papers executed and signed by different parties and imposing different obligations on the parties executing them." And where a person sends to another two written instruments purporting to be counterparts of a proposed eontraet, but which differ materially, and asks him to a�ept and return the duplicate, and he signs but one of the instruments and returns it, this is the eontraet between them.s. A written agreement of which there are two copies, one signed by e ach of the parties, is binding on both to the same exten t as if there had been only one copy of the agreement and both had signed it,115 but there is no agreement where the two copies differ in a material point.• Where a contract is to be executed· in du plicate, it becomes effective as soon as one of the copies is nec uted by both parties.81 Duplicate contracts are treated as originals, although the parties may han ehosen to call one "original copy" and the other "duplicate copy.',.,
Agreement Partly Written and Partly Oral
An agreement may be partly in writ ing and partly by word of mouth ;• such an agreement i.s io be treated as an oral contract. 70 Further a contract may be in writing as to one party and oral as to the other, as where a person makes his offer in writing and the other party accepts orally or vice '\'ersa;n su ch a c ontract is to be regarded as a written contract; 73 and the same is true where an instrument which purports to set forth the mutual obligations of a contract is signed by but one party and i.s aeeepted and ael!ed on by the other.73 But this principle is not applie'able to the draft of a proposed contract not signed by either of the parties.74
Signing
Delivery
Date
Leaving Blanks in Writing
Revenue Stamps
- ↑ See Acceptance § Acceptance by Assent.
- ↑ See Consideration § Contracts under seal
- ↑ See Doyle v. West, 60 Oh. St. 438, 447, 54 NE 469.
- ↑ Valdes Hotel Co. v. Ferrell, 17 Ga. A. 93, 86 SE 33 3 ; Quigly v. Muse, 15 La. Ann. 197; Stabler v. Cowman. 7 Gill & J. (Md.) 284; Ludwig v. Bungart, 26 Misc. 247. 56 NYS 51 [rev on other grounds 48 App. Dlv. 613. 63 NYS 91].
See Consideration. - ↑ Del.-Jones v. Tucker, 26 Del. 422. 84 A 1012.
Ky.-John King Co. v. Louisville. etc . , R. Co., 131 Ky. 46, 1 1 4 SW 308 [reb den 116 SW 1201].
Mich.-Mall, etc., Co. v. Wood, 140 Mich. 505, 1 03 NW 864.
N. Y.-Sackett v. Sackett, 14 NYS 251.
Oh.-Merrlck y. Di tzler, 91 Oh. St. 256. 110 NE 493. - ↑ American Colortype Co. v. Continental Colortype Co., 188 U. S. 104. 23 SCt 265. 47 L. ed. 404; Butler v. Tifton, etc., R. Co., 121 Ga. 817, 49 SE 763; International Power Co. v. Hardy, 118 Ga. 512, 46 SE 311; Florida, etc., R. Co. v. Varnedoe, 81 Ga. 175. 7 SE 129; Valdes Hotel Co. v. Ferrell, 17 Ga. A. 93. 86 SE 333; Walton-Wilson-Rodes Co. v. McKitrick, 141 Ky. 415, 132 SW 1046.
Incorporation of terms by reference see Construction and Operation § Papers Annexed or Referred to. - ↑ Wyatt v. Wanamaker, 126 App. Div. G56, 111 NYS 90 [aff 58.Misc. 429, 110 NYS 900]; Wyatt v. McCreery, 126 App. Dlv. 650, 111 NY.S 86.
[a] Philippines.-When the essential requisites for the existence of a contract are present, the contract is binding on the parties whatever may be the amount involved, and, although required to be in writing by Civ. Code art. 1280, plaintiff can maintain an action on the verbal agreement without first bringing an action under art. 1279 to compel the execution of a written instrument. See Thunga Chui v. Que Bentec, 2 Philippine 561.
[b] Porto Rico.-- Under the provisions of the former civil code contracts involving more than a certain amount were required to be in exwriting. Civico v. Rodriguez, 4 Porto Rico 296.
- This provision did not affect the validity of contracts between the parties. Bigelow v. Porto Rico Planters' Co., 7 Porto Rico Fed. 463.
- ↑ Northwestern Nat. Ins. Co. v. Avant, 132 Ky. 106, 116 SW 274.
- ↑ Austin v. Foster, 9 Pick. (Mass.) 341; Central Lunatic Asylum v. Flanagan, 80 Va. 110.
