Page:The American Cyclopædia (1879) Volume V.djvu/294

 290 CONTRACT out any device at all, could be used for making an impression. It was required at common law that there should be an impression upon some soft substance, usually wax, which was affixed to the deed which it authenticated. The definition of a seal by Coke was : Sigillum est cera impressa ; the wax alone without an impression would not be a seal, but it mattered not what was impressed. It became usual, es- pecially in this country, to substitute small slips of paper for seals, which were attached by wax or wafers to the deed. While the paper was moist, an impression could be made that would be perceptible, but, as before re- marked, the impression itself had nothing dis- tinctive ; hence in some of the states it has been altogether dispensed with, and a mere scroll or flourish with the pen substituted in place thereof. This would seem to be, in fact, abolishing the use of a seal as a distinct formal- ity ; yet, in all the modes of sealing, whether by wax, paper, or scroll, the legal effect has remained the same. In some states it has been provided by statute that the want of considera- tion may be proved in avoidance of a sealed instrument; but other incidents of sealed in- struments are still in force, the most important of which is, that a longer time is allowed for bringing an action thereon, usually 20 or 10 years instead of 6, which is allowed in case of simple contracts. The essential rules in respect to contracts are : 1, that the parties must be legally competent to make a contract ; 2, there must be a sufficient consideration ; 3, the con- tract itself, or what is agreed to be done, must be lawful ; 4, in determining the legal effect of some contracts, it sometimes becomes ne- cessary to refer to the laws of other countries, as if the contract was made or to be executed abroad, and this involves the application of rules derived from the lex loci, or law of the domicile, on the one hand, and the lex fori or rei sitce, the law of the place where the subject of the contract is situated, or with reference to which the contract is supposed to have been made, on the other. 1. As to the competency of the contracting parties, it is a universal rule that there must be sufficient age, understand- ing, and freedom of will. The age at which contracts may be made is different in different countries. By the English and American law the age of 21 years is the time fixed for full legal ability to contract. All persons under that age are called infants, and are under dis- ability to bind themselves except in certain specified cases. Among these is the right to make a contract of marriage, which by com- mon law is allowed to males at the age of 14, and to females at the age of 12 ; by this is to be understood a contract in prcesenti, for a promise of marriage to take effect in future is subject to the same rule as other contracts. In France the age of consent to marriage was made by the Napoleon code 18 for males and 15 for females. Another of the excepted cases is a con- tract by an infant for necessaries, such as cloth- ing, food, medical aid, &c. ; but he is bound only for what these necessaries are really worth, and not by any agreement he may make for a price beyond that. If, however, the infant is living with a father or guardian who provides for him, he cannot bind himself even for neces- saries. So he may bind himself as an appren- tice ; may make a testament of chattels, if a male, at the age of 14, if a female, at the age of 12 ; and may be an executor at the age of IT; but these subjects are now covered by statutes. A married woman is by the common law incompetent to make contracts; but by statute in several of the states she may convey or devise her real and personal estate, being her separate property, in the same manner as if she were unmarried. Sanity of mind is also requisite to the validity of a contract. A per- son who is, according to legal phraseology, non compos mentis, is incapable of making a bind- ing contract. Intoxication was formerly held not to constitute an exemption from liability upon a contract made while in that state ; but the rule is now otherwise, and it is held that a contract is void in all cases where the person at the time of making it was without sufficient understanding to know the nature and conse- quences of the contract, whatever may have been the cause of such disability. Mere im- becility or weakness of understanding, when it does not amount to an entire want of reason, is not* sufficient to avoid a contract, but will have great weight in inducing courts to set aside a contract if there should appear to have been unfair practice or imposition by the other party. "What is called in law duress, that is to say, any improper restraint forcibly exercised over the will, is a sufficient ground for avoid- ing a contract made under such influence. 2. In respect to the consideration of a contract, it is a general rule that there must be something mutual. A promise made without any con- sideration is a nudum pactum, and without any legal effect. To this, however, there are two exceptions, viz. : instruments under seal, and bills of exchange or promissory notes which have passed into the hands of an innocent holder who has given value. The considera- tion sufficient to sustain a contract may be what is called a good consideration, as natural affection between near relations, or a valuable consideration, as money or some other recip- rocal benefit. The former is sufficient as be- tween the parties, but is not allowed to pre- vail against the just rights of creditors or other third persons ; as if a parent should give money or other property to a child when he was un- able to pay his debts, the gift could be avoided by creditors or others having an equitable lien. A valuable consideration may be either a bene- fit to the party promising, or some prejudice to the party to whom the promise is made. Mu- tual promises furnish a sufficient consideration, each to sustain the other, provided they are made at the same time. If the consideration be wholly past and executed, it will be insuffi-