Article — Marc, Institutiones Morales
ARTICLE I: On the Notion of Contract
- DEFINITION. A contract is the consent of two or more persons into the same agreed thing, with the mind of contracting an obligation.01
It is said: 1. consent, that is, a practical determination of the will; - 2. of two or more, because there is no obligation of justice or fidelity unless at least between two; - 3. into the same agreed thing, that is, concerning something to be given or done, which must necessarily be understood by all in the same way; - 4. with the mind of contracting an obligation; otherwise it would be a mere purpose.
In every contract three things are distinguished by jurists, namely essence, nature, and accidentals. To the essence belong those things without which the contract cannot exist: as, for example, in sale, the thing, the price, and consent. If one is lacking, there is no contract. If in place of a price, for example, another thing is given, it will not be a contract of sale, but of exchange. To the nature belong those things which, although not expressed, nevertheless from law, or usage, or equity, are understood to be comprehended in the contract, although they are not essential. Thus, for example, in sale, security against eviction can be excluded by a special agreement; but if no condition is expressed, the seller must furnish such security (cf. n. 1125). Finally, accidentals are called those things which can be joined to the contract without being considered added by law or by the nature of the thing; for example, such a delay in payment of the price and similar things.
(01) Cf. Dig., l. 2, tit. 14; French Code, 1101-1107; Italian, 1098-1103; Austrian, 863, 864; Spanish, 1254-1259; German, 104, 145 ff.
- There is a twofold SOURCE from which the right of contracting emanates: a) from nature, that is, from the mutual need of men, which drives them to enter upon mutual obligations and grants them the power of entering upon these; b) from human law, which generally so establishes and governs the modes of contracting that citizens are neither impeded from the equitable exercise of right nor permitted gravely to abuse it to the destruction of others. But although the civil law, on account of the public good, can limit the natural right of private persons, as we said above, n. 838, yet it cannot violate it, nor validly establish anything against Ecclesiastical Law (cf. n. 149).
- DIVISION. A contract is: 1. Formal or express, or virtual or tacit. The former is that which is made by words, writings, or other signs directly manifesting consent. But the latter is that in which consent into the thing agreed upon indeed exists really, but is manifested only implicitly by some saying or deed.
Thus a physician exercising his art is considered to promise that he will do everything which his profession requires, according to the saying of Law: "you pledge the skill of the art." This contract is commonly called a quasi-contract.
Named or unnamed. A named contract has its proper name in Law, as purchase, lease, etc.; an unnamed contract lacks a proper name in Law. All unnamed contracts are reduced to four species, namely, I GIVE THAT YOU MAY GIVE; I GIVE THAT YOU MAY DO; I DO THAT YOU MAY GIVE; I DO THAT YOU MAY DO.
Unilateral or bilateral or synallagmatic. The former is made when one or more bind themselves toward one or more who are not bound, as in the contract of promise. The latter is had when one or more bind themselves toward one or more others likewise bound, as in various exchanges. It is a contract strictly taken. - Yet, even some gratuitous contracts are bilateral, for example deposit, loan for use.
A BILATERAL contract is commutatory or aleatory. It is commutatory if each contracting party is considered to give or accept something equivalent and certain, as in sale. It is called aleatory, or of fortune, if what is given or promised depends on an accidental event, as in games of dice.
Gratuitous or onerous. Gratuitous is that from which one party alone receives a benefit which the other party grants to him gratis, for example donation, loan for use. Onerous is that from which each party undertakes a burden for a benefit, for example sale, lease.
Principal or accessory. Principal is that which does not depend on another contract, as sale, exchange, donation, etc. Accessory or subsidiary is that which depends on another, and is ordered to its fuller security, as suretyship, pledge, and hypothec.
Solemn or simple, according as it requires special formalities of law, or is subject only to general dispositions. Simple is subdivided into written and verbal.
Naked or clothed. A naked contract is that whose natural obligation is not confirmed by Positive Law. - A clothed contract is that which, besides agreement, has the support of Law. This confers an action for demanding execution before tribunals; to the former also, in NEW Law, favor is generally conceded, provided it can be proved (see Lehmkuhl, I, n. 1241). Thus, for example, the Law protects the retention of what has been received.
Real or consensual. Real is that which, in its species, is not perfected except by delivery of the thing agreed upon, as is loan for use, loan for consumption, deposit, etc. Consensual is that which is completed by the consent alone of the contracting parties duly exhibited, as is lease.
Pure, or absolute, or non-pure, or conditioned, according as no condition or some condition is appended to it.
Firm or rescindable, according as its binding force at once becomes absolute, or can be constituted void by competent authority.