Contract

[Lat. contractus, from contrahere, to draw together.] An agreement, upon sufficient consideration, to do or not to do a particular thing.

2 Bl, Com, 442.

Otherwise variously defined as follows: An agreement of two or more persons, upon sufficient consideration, to do or not to do a particular thing.

2 Rent's Com, 449.

An agreement in which a party undertakes to do, or not to do a particular thing.

Marshall, C. J., 4 Wheatm's JR. 122, 197.

A compact between two or more parties.

Id. 6 Cranc Ks B, 87, 136.

An agreement between two or more persons to do or not to do a particular thing.

Taney, C. J., 11 Peters' B, 420, 672.

A covenant or agreement between two parties, with a lawfm consideration or cause.

West's Symbol, part 1, lib. 1, § 10.

CoweU, Blount. A deliberate engagement between competent parties, upon a legal consideration^ to do, or to abstain from doing some act.

Story on Contracts, § 1.

An agreement or covenant between two or more persons, in which each party binds himself to do or forbear some act, and each acquires a right to what the other promises.

Encychp.

Amer, Webster, A mutual promise, upon lawful consideration or cause, which binds the parties to a performance. Webster, The writing which contains the agreement of parties, with the terms and conditions, and which serves as a proof of the obligation. Id. This last is a distinct signification of the term. Mr. Stephen objects to the definition of Blackstone {supra,) 1, that the word agreement itself requires definition as much as contract; 2, that tke existence of a consideration, though essential to the validity of a parol contract, forms properly no part of the idea; and 3, that the definition takes no sufficient notice of the mutuality which properly distinguishes a contract from a promise.

2 Steph. Com, 109, note.

His own words of definition are: ''A contract or agreement is where a promise is made on one side, and assented to on the other; or where two or more persons enter into engagement with each other, by a promise on either side.''

Id. 108, 109.

As to the word agreement, it may be observed that some word of the kind seems essential to constitute the basis of any definition of contract that can be attempted. Agreement appears to be the translation of conventio in the civil law definition of the term, but falls short of the original (a coming together) in expressiveness, besides being liable to the objection of being a synonyme (or nearly so,) of the word which it is selected to define. Its use, however, has tlte support of the highest authority in ancient and modem law.

As to the idea of a consideration

it will be seen that it has been admitted into the best definitions of contract, both ancient and modern, (except that of Chief Justice Marshall,) that have been framed; and its materiality to complete the idea of a contract is forcibly shown by the circumstance, that in that class of contracts (those by specialty or under seal) in which no confllderation in fact is required^ one is always presumed by law, the form of the instrument being held to imjxn-t a consideration.

See 2 ICent's Com. 450, note.

The third objection of Mr

Stephen to the definition of Blackstone, that it takes no sufficient notice of the mvtuality of a contract, has apparently more weight; although, from Biackstone's own analysis of his definition, it would seem that he intended the idea of mutuality to be conveyed by, and implied in the word agreement itself, which, in another passage, he describes as *' a mutual bargain or convention."

2 BL Com, 442.

On the whole, notwithstanding these objections, the coi Tectness of the definition of Blackstone remains essentially unimpeached, and it certainly enjoys the preference of the best authority.

2 Kent s Com. 449, 460.

Story on Contracts, ubi supra. The modem use of the word contract, as a generic term for all sorts of obligations, (including those created by record and by specialty,) though established on high authority, seems to be an undue extension of the proper meaning of the term, and has thrown much difficulty in the way of accurate definition. Contract is obviously derived (through contractus a term of the civil law) from contrakere, to draw together; importing the same radical idea with agreement, but with a stronger expression of mutuality in the use of the particle con. See Agreement, Mutuality, indeed, is of its very essence; not only mutuality of assent, implying free and deliberate action of the parties in coming into the contract, but mutuality of act also, — mutuality in the things agreed to be done by the contract; each party engaging to do, or not to do certain things. There is, in Lord Coke*s phrase, (though not in the etymological sense in which he used it,) act against act, {actus contra actum.) 2 Co, 16, 7 Man, d: Or, 998, arg. and note. Thus, in the contracts of sale, bailment and for the performance of work, there are acts to be aone by hoik parties; the one engaging to deliver the article or perform the work, and the other to pay the price, to use the article carefully, (kc. So, in the contracts of partnership and marriage, the engagements are mutual. Engagements of this description, and no others, seem to come properly under the denomination of contracts. In a bond, on the other hand, there is none of t Ub kind of mutua Uty; there is no act to be done by the obligee to make the instrument binding; the obligation is all upon the side of the obligor. In a judgment, there is not only no mutuality of act, but not even mutuality of assent; the obligation being fastened upon the party by the law, whether he wills it or not; judicium redditur in invitum. Hence judgments have very properly been denied to be contracts, notwithstanding the doctrine of Blackstone, that a contract is in such cases implied. Lord Mansfield, 3 Burr. 1546. 1 Cowen's R. 316. Story, J., 1 Mason's R, 288. The impropriety of applying the term contract to bonds and judgments seems to be virtually admitted by Mr. Chitty, who uses obligation as an alternative word of description, in regard to both. Chitty on Contracts, 2, 4. See Obligation,