CONTRACT LAW: The Issue of Vows

(Договорное право: Вопрос обещаний)

As tort actions on the case developed, Contract Law began to be based on dealings in land and between merchants. The first of these were based upon contracts under seal. There was a written document signed by the parties to which they had affixed their personal wax seals - thus the term. As between merchants, some rules of behavior were becoming so taxed that contracts were implied to exist even when there was nothing under seal. But the Law Merchants did not, at first, help normal buyers because of the doctrine of caveat emptor - "let the buyer beware".

But what was to be done when someone promised to do a service for another, like build a barn, but verbally and not in writing? Then he builds negligently: the barn falls on the owner's cattle, injuring the cat­tle (which are personal property). Thus we have two parts of trespass: damage to personal property as a result of negligence. But the property is not attached to plaintiff (trespass force of arms), it is not removed (trespass by taking), the harm is not direct (it is like the log laying in the highway) and it rose out of agreement (contract). To solve this new problem, local courts created under Tort Law, a field called assumpsit.

Soon came an action on the case in contract for deceit. Assumpsit became the complaint for direct harm while action on the case was for indirect harm. And very quickly implied promises of good workman­ship were imposed upon those who offered their services or wares to the general public. Eventually, assumpsit and its related concepts split off from torts and became what we now call Contract Law. Today we have added, under a warranty portion of Contract Law, strict liability in contract for defective products. Etc., etc., etc. The law is never static; it is always in change, growing or retreating, which also affects notions of justice, and the need for some absolutes.

Now to look at the terms of Contract Law:

Mutual Assent (Offer and Acceptance):

revocable and irrevocable (consideration to hold open is needed) offers; unilateral (performance response) or bilateral (promise re­sponse); knowledge of offer required to accept; communication of acceptance to offeror required; certainty of terms needed; offer is personal to offeror and to offeree.

Consideration:

legal detriment (to do what need not do, or not to do what may do) by each (mutuality) and adequate (not a fake); promissory estoppel (anticipated reliance upon a promise, reasonably done by offeree, with harm resulting to offeree, will make a contract though offeror did not intend contract).

Legal Capacity:

infants (under 21) and the mentally infirm may avoid contract after incapacity no longer exists (exception for necessities).

Form and Interpretation:

statute of frauds (what contracts must be in writing); course of dealing or of trade (to aid in interpretation of terms); parole evidence rule (no oral testimony from events prior to execution of a contract allowed to contradict terms).

Conditions, Performance and Breach:

anticipatory repudiation; substantial performance (may remove from statute of frauds); excuse of performance; tender of performance; warranties.

Defenses:

impracticability; risk of casualty loss; frustration; illegality; discharge of duties.

Remedies:

avoidance or revocation; duress, undue influence, misrepresen­tation, fraud; mutual mistake of fact (or of law); unconscionability (issue of lack of mutuality); ratification after performance.

Third Party Beneficiaries:

may they benefit; may they enforce.

Assignment (of Rights) and Delegation (of Duties):

Contract Law came to ask these questions:

Was there a contract? This meant an offer (promise) by one with an acceptance (promise) by another.

Was there an adequate consideration (a legal detriment, giving up a legal right; agreeing to do what one was not legally required to do) to support each promise?

Did each party have the legal capacity to contract (an issue of age, mental infirmity, or marital status if a woman)?

Was the contract valid? This included matters such as duress, fraud, misrepresentation, etc.

What were the conditions of the contract, and were they "certain"? That is, can we readily determine what it was that the parties agreed so that a proper remedy may be ordered? In the Merchant Law, the con­tract was examined from the standpoint of the "hypothetical reasonable merchant".

Has the contract been breached?

Was the breach material?

Is the proof sufficient to tip the scales of justice?

What needs to be done to restore the injured to the position they oc­cupied prior to the breach, or otherwise to make right for the wrong done by the breach?

Дата добавления: 2015-10-30