Alternative title: contract law


Historical development




Roman law





Common law

From perhaps the 13th century on, English common law dealt with contractual problems primarily through two actions: debt and covenant. When a fixed sum of money was owed, under an express or implied agreement, for a thing or a benefit given, the money was recoverable through a simple action at debt. Other debt action was available for breach of a promise, made in an instrument with a seal, to pay a fixed sum of money. A so-called action at covenant could also be brought, but only for breach of a promise under seal. These actions did not, however, provide a remedy for the breach of an informal agreement to do something. In the 15th century the common-law courts started to develop a form of action that would render such agreements enforceable, and by the middle of the 16th century they had done so through the form of action known as assumpsit (“he has undertaken”). Originating as a form of recovery for the negligent performance of an undertaking, it came step by step to cover the many kinds of agreement called for by expanding commerce and technology. Having established in principle a comprehensive remedy, it was necessary for the courts to limit its scope. The courts found the limiting principle in the doctrine of “consideration,” according to which a promise as a general rule is not binding unless something is given or promised in exchange. This consideration need not be of commensurate value, but it must be of some value, must be bargained for, and cannot be simply a formality.

Civil law

On the Continent, the revived study of classical Roman law had an immense influence upon the developing law of contract. It stimulated the rediscovery or construction of a general law concerning the validity of agreements. The Roman law, however, as crystallized in Justinian’s law books, tended to confirm the notion that something more than an informal expression of agreement was required if a contract was to be upheld by a court. Another significant influence in the development of contract law on the Continent was the Roman Catholic Church. The church in its own law (canon law) strongly supported the proposition that a simple, informal promise should be binding (pacta sunt servanda). This attitude was to encourage the development of informal contracts. The natural-law philosophers took up such ideas as pacta sunt servanda, although they were slow to abandon the view that some contracts, especially contracts of exchange, should require part performance if they were to be held enforceable. By the 18th century the speculative and systematic thought of jurists and philosophers had finally and fully carried the day. The legal writers and legislators of the period generally considered informal contracts as enforceable in the courts. Thus in the French Civil Code of 1804, contract was approached essentially in terms of agreement; obligations freely assumed were enforceable except when the welfare of society or the need to protect certain categories of persons, such as minors, dictated otherwise. With the generalization that contract rests ultimately on agreement, the civil-law systems achieved a foundation quite different from the common law’s view that contract is basically a promise supported by a consideration.

All the Western systems of modern contract law provide mechanisms through which individuals can voluntarily assume, vis-à-vis others, legally binding obligations enforceable by the other person. Contract law strives to give legal expression to the endlessly varying desires and purposes that human beings seek to express and forward by assuming legal obligations. The resulting system is open-ended; in principle, no limits are set in modern contract law to the number of possible variations of contracts.


The setting of standards

In theory, contractual obligations should be concluded between parties of substantially equal awareness and bargaining power and for purposes fully approved by society. The law reflects this utopian idea in the sense that it tends to conceive of contract as an arrangement freely negotiated between two or more parties of relatively equal bargaining power. The manifestations of intention required to form a contract are accordingly thought of as indicating real willingness, although in fact they may simply represent acquiescence.

Fairness and social utility

Much of the law of contract is concerned with ensuring that agreements are arrived at in a way that meets at least minimum standards respecting both parties’ understanding of, and freedom to decide whether to enter into, the transactions. Such provisions include rules that void contracts made under duress or that are unconscionable bargains; protection for minors and incompetents; and formal requirements protecting against the ill-considered assumption of obligation. Thus, section 138 of the German Civil Code renders void any contract “whereby a person profiting from the distress, irresponsibility, or inexperience of another” obtains a disproportionately advantageous bargain. In addition, more general social requirements and views impinge upon contracts in a number of ways. Certain agreements are illegal, such as—in the United States—agreements in restraint of trade. Others, such as an agreement to commit a civil wrong, are held by the courts to be contrary to the public interest. Certain systems discourage some purposes, such as the assumption of a legally binding obligation to confer a gift of money or other gratuitous benefit upon another, by various special requirements.

Legal systems often have recourse to interpretation in the interest of fairness and social utility. Many litigated cases in which a remedy is sought for breach of contract are concerned with the meaning to be attached to the verbal expressions and acts of the parties in their dealing with each other. Ambiguities, for example, may be resolved against the party thought to have the superior bargaining position. This decision is common in cases in which one party is able to set the terms of a contract without bargaining. Again, a written agreement may be interpreted against the party who drafts or chooses the language. Or the court may prefer an interpretation it finds to be in accord with the public interest.

Although all legal systems try to achieve a reasonable approach to freedom of contract, there are bound to be contractual obligations that depart in some degree from the ideal. No one seeking to enforce a contract is required to show affirmatively that it advances specific ends desired by society or that the contracting process is without blemish. Such a requirement would be administratively cumbersome and expensive. In addition, it would reduce the general usefulness of the contract as an economic and social instrument. Differences in the economic resources available to individuals are found in most societies; to the extent that these differences flow from general conditions and are reflected in, rather than produced by, individual contracts, it is usually not feasible to take remedial action through the law of contracts. A single contract, moreover, is often only one element in a complex of economic and legal relations. Thus, in times of severe inflation or deflation, it may simply not be feasible to seek to deal with the resulting inequities in terms of redoing individual contracts.

Contracts of adhesion

There are large areas of economic life in which the parties to contracts have such unequal bargaining positions that little real negotiation takes place. These contracts are often known as contracts of adhesion. Familiar examples of adhesion contracts are contracts for transportation or service concluded with public carriers and utilities and contracts of large corporations with their suppliers, dealers, and customers. In such circumstances a contract becomes a kind of private legislation, in the sense that the stronger party to a large extent assigns risks and allocates resources by its fiat rather than through a reciprocal process of bargaining. Enforcement of such standard contracts can be justified on the ground that they are economically necessary. The question then becomes whether these decisions are to be made by private enterprise or by other agencies of society—in particular, government—and to what extent the interest of those who deal with such economic enterprises can be represented and protected in the decision-making process.

Contract law in such cases provides only what can be called the legal relationship. The content of the relationship derives not from bargaining between the parties but from the fiat of the large enterprise often offset by the fiat of some government agency. In a sense, the socially regulated contract of adhesion seeks to eat the cake of bureaucratic rationality while having, as well, the cake of individual choice and decision. Doubtless both cakes are diminished in the process, but the result may well be more satisfying than if only one had to be chosen. At all events, the resulting legal-economic phenomenon is radically different from that envisaged by traditional contract law. Legislative attempts have been made in a number of countries, such as West Germany (1976), the United Kingdom (1977), and France (1978), to strike a balance between the general freedom to contract and the protection of the weaker party.

The rules of different legal systems

Traditional contract law developed rules and principles controlling the voluntary assumption of obligations, regulating the performance of obligations so assumed, and providing sanctions for failure to perform.

Offer and acceptance

Some of the rules respecting offer and acceptance are designed to operate only when a contrary intention has not been indicated. Thus, in German law an offeror cannot withdraw his offer until the time stipulated in the offer or, if no time is stipulated, until a reasonable time has passed; but this rule yields to a statement in the offer to the effect that it shall be revocable. In Anglo-American common law, when parties contract by correspondence, the acceptance takes place on dispatch of the letter, but the offeror can stipulate that no contract will be formed until the acceptance has reached him. These rules serve to fill in points on which the parties in their negotiations have not, for one reason or another, been specific.

Another function of rules relating to offer and acceptance is to enable the parties to understand and to mark when their discussions pass from an exploratory stage to the stage of commitment. The concepts of offer and acceptance are somewhat formal; they assume that the negotiations pass through clearly distinguishable phases, which is often not the case. But they help the parties to distinguish negotiation from commitment. The two words offer and acceptance become firmly associated with the assumption of obligations.

Different legal systems frequently advance comparable policies in quite different ways. Several distinctly different patterns are found in the approach of modern legal systems to the problems of whether an offeror is free to revoke his offer before acceptance and of when an acceptance is effective to form a contract. Perhaps the polar extremes are represented by German civil law on one hand and Anglo-American common law on the other. In the German view, an offer binds the offeror for any stipulated period or, when the offer is silent as to time, for a reasonable period unless the offeror has expressly made the offer revocable. The common-law rule is the opposite: an offer is revocable until it has been accepted. The two systems also have sharply divergent rules with respect to the point at which, when the parties are contracting by correspondence, the acceptance takes effect to conclude the contract. In German law the acceptance takes effect when it reaches the offeror, in the sense that he either knows or can learn of it. In the common law, on the other hand, if the offeree uses an appropriate means of communication, the acceptance is effective on dispatch unless the offeror stipulated the contrary in his offer. (A revocation by the offeror, however, does not take effect until received by the offeree.)

How are these divergencies in the rules respecting offer and acceptance to be explained? In particular, do they reflect fundamental policy differences or simply different techniques designed to forward quite similar purposes? An examination of a typical problem posed when parties contract by correspondence suggests the latter explanation. Upon receipt of an offer, the offeree frequently changes his position by, for example, refusing or ignoring other offers, neglecting to seek additional offers, or himself making propositions based on the offer made to him. For this reason the legal system sees a need to provide the offeree with a secure point of departure for his decision, in order both to protect him and to facilitate commerce generally. The German system provides this protection by making the offer in principle irrevocable. The common law, on the other hand, found this solution excluded by its doctrine of consideration; as the offeree does not give anything in exchange for the offer’s irrevocability, consideration is lacking to support an obligation not to revoke. (On the other hand, the Uniform Commercial Code, which has been adopted everywhere in the United States except in parts of Louisiana, provides that a firm offer made by a merchant is irrevocable even though the other party has given no consideration.) The common law is not entirely insensitive to the offeree’s predicament. The rule that the acceptance is effective upon dispatch creates a situation in which the offeror who wishes to revoke his offer is uncertain whether or not he can still do so, since his revocation is not effective until receipt, whereas the offeree’s acceptance, if one is made, takes effect on dispatch. This uncertainty makes the consequences of an attempted revocation unpredictable and thereby inhibits an offeror who might otherwise seek to revoke. In sum, the German and Anglo-American systems both try to achieve, and in a measure succeed in achieving, a fair balance between the offeror and the offeree.


Unenforceable transactions

In all systems of contract law, certain classes of transactions are treated as unenforceable by the judicial process because they are thought to involve unusual hazards for a contracting party or to be of marginal social utility. There are, in both civil-law and common-law systems, four kinds of concern that lead the systems to treat certain types of transaction as unenforceable. These four kinds of concern may be called evidentiary, cautionary, channeling, and deterrent. The evidentiary concern springs from the desire to protect both the individual citizen and the courts against manufactured evidence and insufficient proof. The cautionary concern seeks to safeguard the individual against both his own rashness and the importuning of others. The channeling concern seeks to mark off or label obligations that may be enforceable and to direct attention to the problem of the extent and kind of the legal obligation, so that the individual will know the legal significance that his action may have. Finally, the deterrent concern refers to those types of transaction that are discouraged because they are felt to be of doubtful value to society.

Two quite different techniques are used to delineate types of transaction that are unenforceable in their natural, or normal, state. The first proceeds by describing the type in functional or economic terms. The common-law Statute of Frauds enacted by the English Parliament in 1677 provided that the following six kinds of contracts should be unenforceable unless expressed in writing: contracts to sell goods exceeding a certain value; contracts to sell any interest in land; agreements that are not to be performed within a year of their making; agreements upon consideration of marriage; suretyship agreements; and undertakings by an executor or administrator to be surety on a debt of the deceased for which the estate is liable. Civil-law systems typically describe as unenforceable in the absence of an appropriate formality noncommercial contractual obligations exceeding a certain value; mortgages created by contract; noncommercial compromise agreements; marriage contracts; agreements binding a party to transfer all, or a fractional part of, his property; leases to run for more than a year; assumptions of the obligation to stand as surety, at least when the operation is not a commercial one on the surety’s part; promise of an annuity; and promises to make gifts.

Another less direct technique for delineating unenforceable types of transaction derives from the common law’s doctrine of consideration. It holds transactions unenforceable in the absence of a bargained-for exchange. This class would include, for example, promises to make gifts. The approach tends to be too all-embracing, treating certain types of transaction as suspect when there is little or no practical justification for doing so. It is not clearly demonstrated, for example, that an option agreement made by two businessmen should be handled differently from many other kinds of commercial dealings. A strong argument exists that the common law’s handling of commercial options, business compromises, and other business transactions lacking an element of exchange is more a logical deduction from the general doctrine of consideration than an expression of justifiable policy concerns.

Except in cases where the ground for unenforceability is radical, when a given transaction type is considered unenforceable the legal system should prescribe an extrinsic element the addition of which will cure the defect—for example, expressing the agreement in writing, performing it in part, or having a document drawn up with the participation of a legally qualified notary or other public official who holds a special appointment from the state and is charged with handling and recording various types of transactions.

A complex situation has arisen with respect to the two most generally available extrinsic elements, the seal and the payment of a nominal consideration. Various states of the United States no longer consider the seal as an effective extrinsic element. The seal’s decline is rooted in its changed significance in the modern, literate, democratic world. The seal was originally an impression, usually in wax, of a device, or design, representing an individual or a family. In modern times, the courts, with legislative assistance in a fair number of the states of the United States, have recognized easy-going substitutes for the wax seal, such as simple writing presumed to have been made for sufficient consideration or, in special circumstances, parol agreement for valid consideration. The effect has been to render the seal progressively less effective, particularly from the cautionary perspective, and many courts now refuse to accept it as a satisfactory formality.

Nominal consideration is a subtle and ingenious formality. Its essence is the introduction of a contrived element of exchange into the transaction. Thus A, desiring to bind himself to give B $10,000, requests B to promise to give (or to give) A a peppercorn in exchange. B’s promise (or performance) is an element, extrinsic to a normal gift promise, introduced by the parties in an effort to render the transaction enforceable (since the law does not treat normal gift promises as enforceable). Common-law courts often accept nominal consideration when used in a business context, such as in an option arrangement or a compromise agreement; its effectiveness is understandably more doubtful in the context of a gift promise, since such a transaction involves greater dangers for one party and is socially more marginal.

Civil-law systems have less need than the common law for a formality such as nominal consideration; they prescribe methods directly in their statutes. Interestingly enough, however, in some civil-law systems an analogous, judicially developed formality has emerged—the disguised donation (donation déguisée) of French law, in which the parties cast a gift promise in the form of an onerous transaction, such as a sale. It can be argued that both the nominal considerations and the disguised donation serve at least the cautionary and channeling functions of formalities mentioned above.

Another kind of extrinsic element recognized by some courts, especially in the common-law countries, is one party’s reliance upon the promise of the other. The fact of reliance argues in favour of enforcement because it indicates that an underlying understanding existed between the parties and because the relying party may suffer as a consequence of his change of position. Some courts will enforce initially suspect transactions when several extrinsic elements are present in combination. A common-law court, for example, may enforce a gift promise in which the element of reliance was present in addition to a seal or a nominal consideration. Other extrinsic elements, either alone or in combination with reliance, a seal, or a nominal consideration, may also render a transaction enforceable. Cases, for example, in which the promisor dies without attempting to revoke a gift promise could be enforced, as distinguished from cases in which the promisor seeks to revoke.






Failure to perform




Other problems of contract law

Many contracts involve more than two persons. The law of contracts provides special rules for regulating claims by multiparty plaintiffs or claims against multiparty defendants, or for determining rights among the parties. Multiparty problems arise in other contexts as well. There is the problem of whether the immediate parties to a contract can enter into an agreement that will confer rights upon a person not an original party to the contract. Probably because the dogmatic structure of contract law was largely formed on the model of the simpler two-party situation, and because the contract for the benefit of third parties did not have great practical importance until such relatively modern developments as the emergence of life insurance, many systems of contract law have encountered difficulty in working out the relationship between the third party and the underlying contract. English law took the view that, as a rule, a person cannot acquire a right on a contract to which he is not a party. Some of the problems posed are difficult to resolve: under what circumstances and to what extent should the third party control the underlying contract when, for example, the original parties desire to rescind or modify it?

Another variation of the party problem is presented by efforts to add or substitute parties to a contract. In the absence of an express regulation of the problem in the basic contract, the law works with the notion of the presumed intention of the contracting parties, based on considerations of fairness and practicality. A contracting party cannot, in principle, assign to another his right under a contract if the assignment would result in a significant change in the burden assumed by the other contracting party. A contractual right to receive money or goods is a different matter; it can ordinarily be assigned because the resulting burden on the person under obligation is not great, and because society as a whole benefits from having this flexible economic and legal instrument.

One problem of contract law that has been mentioned above deserves further consideration—the problem of interpretation. Many rules of contract law are simply presumptions, based on experience and tradition, as to what the parties ordinarily intend; if they clearly intend otherwise, the rules are not mandatory. Problems of interpretation frequently arise with respect to the particulars of a given agreement; thus the court seeks to determine what the parties actually had in mind. The effort to ascertain intention may encounter difficulties arising from the law of evidence. Many legal systems limit the use of testimonial evidence to explain the essential elements of a written contract.

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