Contracts/Parties

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Contracts Treatise
Table of Contents
Contracts Outline
Introduction and Definitions
Introduction
Definitions
Elements
Contract formation
Parties
Offer
Acceptance
Intention to Bind
Formal requisites
Mailbox rule
Mirror image rule
Invitation to deal
Firm offer
Consideration
Consent
Implication-in-fact
Collateral contract
Modification
Merger
Uniform Commercial Code
Uniform Commercial Code
Course of dealing
Course of performance
UCC-1 financing statement
Uniform Commercial Code adoption
Defenses against formation
Lack of capacity
Duress
Undue influence
Illusory promise
Statute of frauds
Uncertainty
Non est factum
Contract interpretation
Governing law
Construction and Operation
Parol evidence rule
Contract of adhesion
Integration clause
Contra proferentem
Excuses for non-performance
Mistake
Misrepresentation
Frustration of purpose
Impossibility
Impracticability
Illegality
Unclean hands
Unconscionability
Accord and satisfaction
Rights of third parties
Privity of contract
Assignment
Delegation
Novation
Third-party beneficiary
Performance or Breach
Necessity of performance
Sufficiency of performance
Anticipatory repudiation
Cover
Exclusion clause
Efficient breach
Deviation
Fundamental breach
Termination
Termination
Rescission
Termination and rescission
Abrogation and rescission
Subsequent contract
Termination
Forfeiture
Remedies
Specific performance
Liquidated damages
Punitive damages
Quasi-contractual obligations
Estoppel
Quantum meruit
Actions
Actions in General
Parties to Action
Pleading
Evidence
Questions of Law and Fact
Instructions
Trial and Judgment

Two or More Parties Essential[edit | edit source]

Since a person cannot enter into an agreement with herself nor maintain an action against herself, it follows that two or more parties are essential to every contract. One cannot enter into a contract with herself, or with herself and others,[1] even though she acts in different capacities. It is not necessary, however, that both parties shall be ascertained or in existence at the time the offer is made, if the offer is accepted by one who is within its terms.

Capacity to Contract[edit | edit source]

To render a contract binding the parties must have the capacity to contract.[2] Some persons in the law are altogether incapable of contracting or of entering into particular contracts, while others are under a partial or qualified incapacity. The question of mental capacity to make a contract is elsewhere treated; it is sufficient to say here that, as a general rule, a contract will not be set aside for incapacity of a party, if he was competent to make the particular contract, and there was no fraud or concealment and no advantage taken;[3] and that neither age, sickness, extreme distress, nor debility of body will affect the capacity to make a contract or a conveyance, if sufficient intelligence remains to understand the transaction.[4] Where, however, the party has not sufficient mental capacity to comprehend the effect of his contract, it may be set aside.

Designation and Certainty[edit | edit source]

Construction of contract as to parties see Construction and Operation § Parties.

Parties against whom contract may be enforced see Parties against Whom Contracts May be Enforced.

It is necessary to the validity of a written contract that the contracting parties be described, and the rules of certainty applicable to other essentials of the contract[5] are applicable to the specification and determinability of the parties thereto.[6] Hence a promise by an indefinite and unidentified number of persons to do a particular thing jointly cannot be enforced, as the promisee will not be permitted to proceed against selected persons to compel them to do by themselves what they have only promised to assist others in doing.[6]

References[edit | edit source]

  1. Faulkner v. Lowe, 2 Exch. 595, 597, 154 Reprint 628 (holding, where defendant borrowed money from a fund in which he and others were jointly interested and covenanted to repay the money to the joint account, that he could not be sued on the covenant. Pollock, C. B., saying: "The covenant to my mind, is senseless. I do not know what is meant, in point of law, by a man paying himself").
  2. Distinction between testamentary and contracting capacity: One may be capable of making a will and yet incapable of making a contract. In making the latter, his mind and will power necessarily come In contact with that or the other contracting party, and may be unduly influenced or entirely overcome by it. A contract, therefore, made by one of impaired mental and wil1 power with one standing in confidential relations with him should be closely scrutinized to see that no improper advantage has been taken or undue influence exerted. The exertion of undue influence in such case may be pronounced from the nature of the contract and from the unfair and unreasonable advantage secured by it. Jones v. Belshe, 238 Mo. 524, 141 SW 1130. To same effect Ennis v. Burnham, 169 Mo. 494, 60 SW 1103.
  3. 1206); Cyc es. Sands v. Potter, 165 Ill. 397, 46 NE 282, 56 AmSR 253; Taylor v. Patrick. 1 Bibb <K[.> 168; Loman v. Paullin, (Okl.) 16 P 73; Mays v. Prew ett. 98 Tenn. 474, 40 SW 483.
  4. U. S.-Bowdoln College 1'. Merritt. 75 Fed. UO [app dtam 1U U. S. 651. 17 SCt 416, 42 L. ed. 850j.
    Del.-Rofers v. Rogers, 22 De. 267 66 A 74.
    Ill.-Perry v. Pearson, 135 Ill. 218. 26 NE 636; Kimball v. Cuddy, 117 Ill. 213, 7 NE 689; Pickerell v. Moru, 97 Ill. 220; Wlllemln v. Dunn, 93 Ill. 511; Rogers v. Higgins, 57 Ill. %H; Lindsey v. Lindsey, 50 Ill. 79. 99 AmD 489 1 · Baldwin v. Dunton, 40 Ill. 188; Mil er v. Craig, 36 Ill. 109; Johnson v. Watson, 169 Ill. A. %18. lnd.-Graham v. Castor, 56 Ind 659.
    Iowa.-Nason v. Ch icago, etc .. R. Co., 149 Iowa 608, 128 NW 854· Mer· chants' Nat. Bank v. Soesbe, US Iowa 364, 116 NW 123; Harris v. Wamsley, 41 Iowa 671.
    Ky.-Bevins v. Lowe, 169 Ky. 43S. 167 SW 422; Chrisman v. Quick. 174 Ky. 846, 848, 193 SW U [quot Cycl.
    Md.--caln v. Warford. 33 Md. !!i.
    Mlch.-Mason v. Dunbar, 4S Mich. 407, 6 NW 432, 38 AmR 2t1.
    N. J.-Lodge v. Hultnga, U N. J. Eq. 159, 61 A 1016 [aff 64 N. J. Eq. 761, 63 A 564).
    N. Y.-Tulte v. Hart. 71 App. DIY. 619, 76 NYS 1098; Jennings v. Hent8, neesy, 26 Misc. 265. 55 NYS 833 [a!f 40 Af.P· Dtv. 633 mem, 58 NYS 1142 mem .
    N. C.-Rippy v. Gant. 39 N. C. 443.
    Pa.--colonlal Trust Co. v. Hotfstot. 21i Pa. 497, 69 A 62; A lman v. Stout, 42 Pa. 114; Nance v. Boyer. 30 Pa. 99.
    R.I.--cooney v. ·Lincoln. 21 R. 1. 246, 42 A 867. 79 AmSR 799.
    S. C.-Devall v. Devall. 4 S. C. Eq. 79.
    Utah.--chadd v. Moser. 2li Utah 369, 71 P 870.
    Wls.-Boardman v. Loren tzen, 165 Wis. 666, 146 NW 760, 62 LRANS 476; Henderson v. McG regor, SO Wis. 78.
    B. C.-Baxter v. Roolo, 6 DomLR 764, 21 WestLR 892.
    Undue influence see Undue Influence.
  5. See Offer
  6. 6.0 6.1 Clark v. Great Northern R. Co., 81 Fed. 282.