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Blupete's Weekly Commentary


June 4th, 2000.

"Contracts"

A contract is more of a concept than a thing -- though thought, by a good number of people, to be but a written document which lists that which is to be done. The word contract, however, in its true sense, means an agreement, whether written or not, which is enforceable by law, viz., the coercive power of the state1 can be brought to bear so to force one to live up to their bargain. Blackstone defined it as "an agreement, upon sufficient consideration, to do or not to do a particular thing." It is important to understand that a contract is not a "mere promise" made because of charitable or familial reasons. An enforceable promise, a contract, comes into being only when there is something given in exchange. There is a strict "distinction between a promise and a contract; for the latter involves the idea of mutuality, which the former does not."2

Subject to the conditions where charity applies, all people proceed in their dealings with others in life on the basis of contract; it is the metabolic process of society. It is the very nature of business, usually continually, to be making agreements for the supply of certain articles or the performance of specified work at a certain price, rate, or commission. Indeed, the "society of our day is mainly distinguished by the largeness of the sphere which is occupied by contract."3

One cannot deal with the subject, common law, without dealing with contract; the two are sprung together. Legal entanglements in contract law do not come about until after individuals have made a voluntary contract and on when one of the parties fails to carry out its terms. Contract law has no primary authority, no jurisdiction unless invoked by a party to a contract. Thus, the legal nature of contract is a two sided trade with both sides, to the degree as established between themselves, to both voluntarily giving and both gratefully receiving some service or product. Contract law is self regulating and imposes no duty or obligations to anyone not a party to the contract.4

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NOTES:

1 It was Solon, the Athenian law giver of classic times, who said, "Men keep their agreements when it is to the advantage of neither to break them."

2 Sir James Stephen.

3 Sir Henry Sumner Maine, Ancient Law.

4 So important was the legal concept of contract that the founders of the United States sought to give it constitutional protection, viz., "No state shall ... pass any ... law impairing the obligation of contracts." (U.S. Constitution, 1789.) And, the French socialist, Proudhon, pinned his anarchial theories on contract: "In order that I may govern myself and be subject to no law save my own we must rebuild the edifice of society on the idea of contract."

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Peter Landry

June, 2000 (2011)