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Classification of Contracts
A number of terms are used to help classify contracts. Mastery of
the terms provides an important basis for further understanding of the
Many contracts arise from discussions in which parties actually dis-
cuss the promised terms of their agreement. These are called express
contracts.Express contracts are those in which the agreement is mani-
fested by words, either spoken or in writing. A negotiated purchase of
land for construction of a manufacturing plant is an example of an ex-
If words are not the vehicle for expressing agreement, thecontract
isimplied. There are two types of implied contracts: implied in fact and
implied in law. A contractimplied in fact arises from the conduct of the
parties rather than from words. For instance, seeking professional ser-
vices at a doctor’s office implies a contractual agreement to pay the go-
ing rate for services even though no express promise to pay is made.
The second type of implied contract consists of contractsimplied in
law, referred to asquasi-contracts. Under this theory, the court will con-
struct a contract (even though one did not exist) to avoid unjust enrich-
ment—an unfair windfall to a party. Generally, three elements must exist
before the court will construct a contract without contractual assent:
· A benefit conferred on the defendant.
· Knowledge or appreciation of the benefit.
· Circumstances where it would be inequitable to permit the defen-
dant to retain the benefit without paying for it.
If a debtor overpays a creditor $5,000, the debtor can force the credi-
tor to return that amount by suing under quasi-contract. It would be an
unjust enrichment to allow the creditor to keep the $5,000. Note that
quasi-contract is not an answer to every situation in which no contract
exists. Over the years, courts have come to apply quasi-contract in a fair-
ly limited number of cases based on unjust enrichment.
Another classification of contracts concerns those that are unilateral
and those that are bilateral. Aunilateral contract involves a present act
given return for a promise of future performance. Promise to pay $50 for
ride to Florida during spring break illustrates the unilateral contract. An
example is catching a bank robber in return for the promise of reward.
Inbilateral contracts, each party makes a promise to perform the other:
Smith promises to deliver a deed to the land on October 31. Jones prom-
ises to pay Smith $50,000 for the land on that date. When it is unclear
whether the parties to an agreement intend a unilateral or bilateral con-
tract, courts usually presume that the contract is bilateral.
Anexecutory contract is one the contracting parties have not yet per-
formed. Anexecuted contract is one the parties have performed.
Void contracts are really not contracts at all. They are agreements
that lack an essential contractual element. Often this element is legality
of purpose. For example, in states where gambling is illegal, a bet on a
football, game is void. This usually means that a court will not enforce
the betting agreement. The opposite of a void contract is avalid one,
which contains all the proper elements of a contract.
Avoidable contract binds one of the parties to an agreement but gives
the other party the option of withdrawing from it. Contracts based on
fraud or misrepresentation are two important examples of voidable con-
tracts. Fraud involves an intentional misstatement of a material (impor-
tant) fact that induces one to rely justifiably to his or her injury. Inten-
tionally calling a zircon a diamond and persuading someone to purchase
it on that basis is a fraud. Sometimes failures to disclose a material fact
can also be a fraud, as when a landowner sells a buyer land knowing
that the buyer wishes to build a home on it and does not disclose that
the land is underwater during the rainy season. The defrauded party can
withdraw from the contract. Misrepresentation is simply a misstatemet
without intent to mislead. However, a contract entered into through
misrepresentation is still voidable by the innocent party.
Other examples of voidable contracts are those induced by duress or
undue influence.Duress means force or threat of force. The force may
be physical or, in some instances, economic.Undue influence occurs
when one is taken advantage of unfairly through a contract by a party
who misuses a position of relationship or legal confidence. Contracts
voidable because of undue influence often arise when persons weakened
by age or illness are persuaded to enter into a disadvantageous contract
by a family member or other person.
Another way of classifying contracts is to distinguish between formal
and informal ones. This distinction is largely a matter of historical im-
portance. There are three types offormal contracts. The contract under
seal is the least significant today. When parties entered into a solemn
contract for which they expected performance, they would seal the con-
tract with a signet of heated wax. Courts were prone to enforce contracts
entered into with such formality. Today, contracts under seal are little
more than an historical note. A second type of formal contract is the
recognizance, a bond binding a person to do an act. An example of a re-
cognizance would be an agreement before a court to pay a sum of money
unless the recognizor, the person signing the recognizance, appeared in
court on a fixed date. Finally, negotiable instruments are considered for-
mal contracts. The most common form of negotiable instrument is a
draft drawn on a bank, commonly known as a check. All contracts other
than those under seal, recognizances, and negotiable instruments arein-
formal contracts. Today, informal contracts are as enforceable as formal
contracts if they meet the requirements.
1. Where do many contracts arise from?
2. What classifications of contracts can you name?
3. What contracts are called express contracts?
4. Differentiate between implied in fact and implied in law contracts.
5. Explain why void contracts are not contracts at all?
6. What contract is the opposite of a void contract?
7. What does duress mean?
8. When does undue influence occur?
9. What is specific about a voidable contract?
10. What three types of formal contracts can you name?
Read the text. Draw the tree-diagram of the text. Retell the text according to your tree-
Date: 2015-12-13; view: 279; Нарушение авторских прав