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Contract
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An agreement between persons which obliges each party to do or not to do a certain thing.
An agreement between at least two persons which is enforceable at law.
At common law, a contract requires three elements:
1. A meeting of the minds (also known as consensus ad idem or an offer coupled with an acceptance) on fundamental or substantial terms;
2. In common law jurisdictions, that elusive concept of consideration (something must flow from each party); and
3. Compliance with common law or statute law such as the subject matter of the contract must not be illegal and the parties must “competent to contract” (corporations or adults but not the mentally disabled).
In civil law, a contract does not require the oft-esoteric element of consideration.
The French Civil Code of 2009 defines a contract at §1101 as:
"A contract is an agreement by which one or several persons bind themselves, towards one or several others, to transfer, to do or not to do something."
Similarly, §1378 of the Quebec Civil Code, albeit in its typical stilted English:
"A contract is an agreement of wills by which one or several persons obligate themselves to one or several persons to perform a prestation."
By agreement of wills it is meant that the agreement is voluntary. Prestation is best described as, with apologies to William Shakespeare, to do or not to do something.
The contribution of contracts and contract law to the world in fostering peace and economies cannot be understated. The most eloquent expression of this phenomena came from Henry Sidgwick:
"Withdraw contract … suppose that no one can count upon the fulfillment of any engagement … and the members of the human community are atoms that cannot effectively combine; the complex co-operation and division of employments that are the essential characteristics of modern industry cannot be introduced among such beings.
"Suppose contracts freely made and effectively sanctioned, and the most elaborate social organization becomes possible.”
REFERENCES:
- Civil Code of Quebec, Statutes of Quebec 1992, Chapter 64
- Duhaime, Lloyd, Contract Law
- Duhjaime, Lloyd, Contract Law Dictionary
- Sidgwick, H., The Elements of Politics, 1879, Ch. 6
- Tisserand-Martin, A., Code Civil 2008, 107 Ed. (Paris: Dalloz, 2008)
CATEGORIES AND TOPICS:
This term applies to the following areas of law and categories;