Talk:Contract

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Contents 1 Offer and Acceptance/Unilateral Contract query 2 Added generalize tag 3 ALL CAPS in contracts 4 Terms 5 Signing 6 Class 7 Bilateral v. unilateral contracts [section removed] 8 Contractual holdup 9 law of contract

[edit] Offer and Acceptance/Unilateral Contract query

I think the definition of a unilateral contract is wrong - the bit about the offer being open to the whole world, basically. Black's concurs with me, but I thought I'd throw it out to the discussion page rather than just change the article, because I'm not really all that good at contracts (hence my referring to the wikipedia page ;). If you're not that good at contracts why on earth would you even consider editing this page? lol omg... See Carlill v Carbolic Smoke Ball Company. A unilateral agreement is one where the promisor has made an offer to any party, with a stipulation of what is required to accept the offer. To accept that offer the promisee must intentionally fulfil the stipulated requirements. Eionm 09:06, 20 February 2007 (UTC)

What does Black's say? enochlau (talk) 11:19, 20 February 2007 (UTC)

Black's says "A contract in which only one party makes a promise or undertakes a performance", then gives a couple of quotes from treatises. Eionm 05:00, 21 February 2007 (UTC)

Hmm, I see what you mean. Because of what they are, I think they are typically made to the whole world, but that's not the definition. I've changed it in the body of this article to reflect what is in my legal dictionary. enochlau (talk) 22:06, 20 February 2007 (UTC)

The change looks good, thanks. Eionm 05:00, 21 February 2007 (UTC)

Bowen LJ explicitly addressed the possibility of making an offer to every person in the world, not only did he think it possible, but ruled (jurisdiction notwithstanding) that the defendants in that case had made an offer to every person in the world, reported at Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256 at 266. Bowen LJ also recognised that if everybody were to accept this offer, the company would be contracted to everybody in the world, ibid at 268. Bamkin 13:54, 28 May 2007 (UTC)

[edit] Added generalize tag

I've added a generalize tag because this is a fucking article seems overly focused on the legal aspects of contract (rather than, say, the social, economic, or historical aspects - contracts aren't merely legal). This was discussed a bit above, but I don't think my concerns have really been dealt with (and I don't know enough about those other aspects to be able to address them myself). Elliotreed 05:40, 7 March 2007 (UTC)

I'm removing your tag because I'm not sure what you want. Contracts are quite legal. And it is a law page, after all. I suppose there are other concepts related to contract - like the "social contract" for instance. "Property" and "Property law" are two separate pages. So perhaps you have a point, and maybe we could move the page to "Contract law" - but I'm not sure what the page on "Contract" without the law would say, exactly. Wikidea 07:58, 8 March 2007 (UTC)

For once I've found something I can agree on with Wikidea! I concur with Wikidea's point. --Coolcaesar 19:27, 8 March 2007 (UTC)

I think Elliotreed has a good point. The intricacies of modern contract law are fascinating to some readers, but a lighter, shorter article that simply covers the basics of contracts -- with a link to contract law -- would be helpful. When I put a wikilink to contract in an article, I don't mean to send the reader into the details of contract law, complete with case references. I just want them to understand, say, the difference between a contract and one guy saying to another, "I'll see you tomorrow." --SueHay 00:07, 14 March 2007 (UTC)

The problem then is, where do you draw the line? The ideal article, instead I think, would be one that covers both in the same article, but with clearly delineated sections (getting progressively deeper in content). enochlau (talk) 06:35, 14 March 2007 (UTC)

I can see where you're coming from Sue, but as I said above to Elliot, I'm just not quite sure what else would go in the contract article, without the law... Wikidea 20:24, 14 March 2007 (UTC)

Does anyone have a trusty dead-tree encyclopedia around? What do they talk about in an article about contracts? enochlau (talk) 22:33, 14 March 2007 (UTC)

I don't have a full-blown dead-tree encyclopedia around, but I have an "old" dictionary - Random House, 1975. The first definition of contract is "an agreement between two or more parties for the doing or not doing of something specified." The second definition is "an agreement enforceable by law". The Wicktionary definition

doesn't mention the first meaning, but I think it's is important to mention in a general contract article that not all contracts are legally enforceable contracts. Can someone check the 1911 encyclopedia on this? If someone delivers produce locally on a regular schedule to customers who expect delivery from him, but they have no formal legal contract for delivery, what would you call that agreement? --SueHay 02:03, 15 March 2007 (UTC)

p.s. Will someone please ARCHIVE this talk page, because some of us have slow connections and the page load time is lousy. --SueHay 02:03, 15 March 2007 (UTC)

Actually, the law will indeed enforce as a contract the regularly scheduled delivery of produce if, through a course of conduct, each party can be said to have assented to a continuation of this course of conduct. bd2412 T 03:17, 15 March 2007 (UTC)

I think perhaps those people who are advocating splitting this into two articles are under the (common) misapprehension that all "contracts" must be written, and it is contract law itself that helps you to identify what exactly is a contract - so, discussion of a "contract" and "contract law" should remain in the same article. enochlau (talk) 03:52, 15 March 2007 (UTC)

The thing I was trying to get at was that contracts are a legal topic, but I think an encyclopedia article about a legal topic doesn't need to cover only the specifically legal aspects - that is, the current state of the doctrine. I think it should take a more interdisciplinary approach. For example, more about the history of the contract would be good. (What do sociologists have to say about the process in which contracts are negotiated?) Elliotreed 02:13, 16 March 2007 (UTC)

You mean sociology of law itself? That is a really obscure field. Digging up all the sociology of professions material for Lawyer was a real pain in the neck for me. I doubt the few people who understand sociology of law are going to be interested in making a free contribution to Wikipedia. They're too busy trying to publish before they perish, as academic types say.

Also, you have to distinguish between comparative law and sociology of law. Comparative law is like, Society A has elements 1, 2, 3 to make a contract, and Society B has elements 4, 5, 6. Sociology of law would say that Society A's elements reflect one underlying philosophy or culture and Society B's elements reflect another. Either way, these are really abstruse and complex discussions and are way, way too deep for the casual Wikipedia reader who is curious about contracts. The few people capable of doing that level of research will be publishing it in their Ph.D. dissertation, not Wikipedia! --Coolcaesar 06:12, 16 March 2007 (UTC)

First, thanks for the archive, bd2412 T! Next, I'd like to suggest that someone who's looking up contract in Wikipedia might be looking for the legal definition, might be want to understand the way the term is used (or abused) in something he/she is reading, or might want to know the history of the term. Can this article lightly cover all areas, with section for more information, please see links to more details? Just an idea. --SueHay 23:38, 19 March 2007 (UTC)

[edit] ALL CAPS in contracts

Why do many contracts use all caps for some words? Like: "NOW, THEREFORE, in consideration of the AGREEMENT..." Is there a legal purpose to this? Keep in mind I'm not asking about entire clauses written in uppercase, just single words, scattered throughout the document. — Eric Herboso 05:01, 22 April 2007 (UTC)

I know what you mean about those all caps in contracts. It's not just contracts. Many types of legal documents have funny capitalization. For example, traditionally lawyers write Plaintiff and Defendant (with the first letter always in upper case) throughout court pleadings. I don't know where these weird traditions come from, but I assume they may be leftovers from medieval times when the capitalization rules in English were a total mess. The capitalization rules we are familiar with today didn't really stabilize until the 1850s or 1860s. This is why prose from before 1840 looks really jarring to modern eyes. --Coolcaesar 05:15, 22 April 2007 (UTC)

In the UK it is sometimes contended whether terms are in fact incorporated into the contract. In one case (unfortunatly I forget the case, but it was Dennings presiding), the court ruled that a term was not incorporated but may have been were in written in red. The same principle may apply here. I'll try to find the case, for now see obiter dictum of Smith v Eric S Bush [1989] 2 All ER 514 at 529.

Also in complex scentences this may be to give greater clarity; sometimes (especially in consumer cases a company may have to espress term in a clear and comprehensible way or face having the terms or contract rendered unenforcable, see, inter alia, Consumer Protection (Distance Selling) Regulations 2000, reg 7. Bamkin 14:18, 28 May 2007 (UTC) The case was Spurling v Bradshaw [1956] 2 All ER 121, I quote Denning

"Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.", ibid at 125. It suggest that a term detrimiental to one party would be more likely to bind them if notice has been drawn. Capitalisation would appear to make something stand out :-)

Denning's red hand doctrine only applies when terms are incorporated by notice, not by signature. I think the first case he did this was Thornton v Shoe Lane Parking. I think what Eric was referring to is the format of contracts found particularly in the States & other related jurisdictions. Many use a very archaic form incorporating a preamble which reads "WHEREAS ... NOW THEREFORE ...". They read like an old fashioned English statute (whereas (preamble) now therefore be it enacted by Her Majesty's most excellent majesty). I think it's just tradition mainly. There's no law in any jurisdiction that requires the archaic form. I still see it with deeds though, perhaps because of the solemnity. --Cliau 23:57, 24 June 2007 (UTC)

Actually you can be charged with disluding the offeree if you don't put certain words in Caps. This is supposed to make it fair for everyone including the "common person". That's why in some counties (not countries) the use of legalese is banned because it causes too much difficulties for the "common person" to understand.

[edit] Terms

Would anybody object if I were to move (and elaborate upon) the "terms" section to a new article entitled "Contract Term" or "Term (law)", then change the section on the "contract" page to a mere summary with a main article link. Bamkin 16:21, 27 May 2007 (UTC)

Don't take me as objecting but... could you provide an intuition as to why this would be a good thing to do? enochlau (talk) 02:05, 28 May 2007 (UTC)

Inconsistency, weighting and length. The section is nconsistent with the rest of the article and other top level articles (tort, criminal law, ect) in that all sections are mere overviews with a larger article. The terms section is full of lists which looks messy, and possible overly weighted in certain areas: 3.2,3.3,3.4,3.5 all deal with the broad topic of implied terms, good faith is not pan-jurisdictional, and types of terms is totally omited. Bamkin 13:47, 28 May 2007 (UTC)

ok, though I'd probably name it... Term (contract law)? enochlau (talk) 23:43, 28 May 2007 (UTC)

The new article has been created, what do you think (to the main page section and the new article, neatened and extended, ect?? I went with Contractual Terms simply because the section on the main page calls it that. Bamkin 15:25, 29 May 2007 (UTC)

I think it's wikiformat to put the word in lower case, unless they're proper nouns or the start of the title; so it should probably be moved to "Contractual terms". Otherwise, what's left on the page now would be good if the different subsections linked to their own main articles if there are any, e.g. Implied terms; Express terms; Good faith etc. Otherwise, good work in doing the spring cleaning! Wikidea 22:17, 29 May 2007 (UTC)

[edit] Signing

When a person signs a contract do they have to sign it with their dominant hand? If so, then where is it in the article?--71.234.101.173 21:03, 29 May 2007 (UTC)

Not sure what dominant hand means - if you mean the hand they usually write with, then no, there's no requirement for that. You know how in the cartoons, characters sign with an "X" - well that counts; although there are rules on how to get out of a contract if you can argue "it wasn't my deed" (non est factum) where you've been told what a deed says (because you can't read it) and what you were told was lies, or something; e.g. Gallie v. Lee [1971] AC 1004 in England, where a woman's glasses were broken and she didn't read a deed which signed away her house (that wasn't good enough, because she could've done more to check what she was signing). Wikidea 22:23, 29 May 2007 (UTC)

When sigining a contract, they don't have to sign it with their dominant hand just any hand, they just need to know what the contract says or mean to say. I know some cases where people lied to other people but in most common law countries, you can actually type into a contract and it's valid. Like how I sign checks off to people but I use a computer for mass production and according to US law it's valid. I don't really know about other counties...

9/4/08 In terms of Australia and the United Kingdom, it is actually not relevant how a person signs the contract. It is their intent to enter into binding contractual relations that makes the contract enforceable against them. The signature of course needs to be identifiable in order to prove that the person signed the contract after the fact, however witnesses attesting to the person signing the contract would be sufficient regardless of whether the signature is legible. If both parties are Consensus Ad Idem (meeting of the minds) and both intend to enter into contract, both have consideration, legal capacity and have met the relevant formalities then the contract is binding.

[edit] Class

This is assessed as a B, but someone might want to nominate it for GA. Aboutmovies 00:54, 3 June 2007 (UTC)

I don't think it's a good article. I've only seen it get more muddied and unclear over time. enochlau (talk) 08:11, 24 June 2007 (UTC)

Agreed. I tried to do some work on it a while back, but it got out of hand and its now hard to see how to salvage it. Francis Davey 11:56, 24 June 2007 (UTC)

[edit] Bilateral v. unilateral contracts [section removed]

The following section was excised from the page, but I think it should be put back in: (I agree and I put it back in, it's very relevant)

Contracts may be bilateral or unilateral. The more common of the two, a bilateral contract, is an agreement in which each of the parties to the contract makes a promise or promises to the other party. For example, in a contract for the sale of a home, the buyer promises to pay the seller $200,000 in exchange for the seller's promise to deliver title to the property.

In a unilateral contract, only one party to the contract makes a promise. A typical example is the reward contract: A promises to pay a reward to B if B finds A's dog. B is not obliged to find A's dog, but A is obliged to pay the reward to B if B finds the dog. In this example, the finding of the dog is a condition precedent to A's obligation to pay.

An offer of a unilateral contract may often be made to many people (or 'to the world') by means of an advertisement. In that situation, acceptance will only occur on satisfaction of the condition (such as the finding of the offeror's dog). If the condition is something that only one party can perform, both the offeror and offeree are protected — the offeror is protected because he will only ever be contractually obliged to one of the many offerees; and the offeree is protected, because if she does perform the condition, the offeror will be contractually obliged to pay her.

In unilateral contracts, the requirement that acceptance be communicated to the offeror is waived. The offeree accepts by performing the condition, and the offeree's performance is also treated as the price, or consideration, for the offeror's promise.

The most common type of unilateral contract is the insurance contract. The insurance company promises to pay the insured a stated amount of money on the happening of an event if the insured pays premiums; note that the insured does not make any promise to pay the premiums.

Courts generally favor bilateral contracts. The general rule in the United States is: "In case of doubt, an offer is interpreted as inviting the offeree to accept either by promising to perform what the offer requests or by rendering the performance, as the offeree chooses." Restatement (Second) of Contracts § 32 (1981) (emphasis added). Here the law attempts to provide some protection from the risk of revocation in a unilateral contract to the offeree. Note that if the offer specifically requests performance rather than a promise, a unilateral contract will exist. See option contracts for more information on protection given to the offeree in a unilateral contract.

--Eastlaw 07:58, 14 July 2007 (UTC)

I agree - don't know why it was removed... enochlau (talk) 10:47, 14 July 2007 (UTC)

Enoch, not knowing why it was removed isn't a very good reason to put it back in! There's one reference in it only. The first part is covered in the part of the article talking about Carlill, so it's repetitive. I'm afraid I don't see how insurance contracts are unilateral, and I don't really follow the explanation of it - it's a bilateral contract if both are exchanging promises even on the possible occurrence of an event (e.g. damage or payment of premiums). Again it's unreferenced, so I wouldn't trust it unless it'd been explained better. And then, how do courts favour bilateral contracts more? Unilateral contracts can still be valid can't they? The Restatement bit is of course useful that follows - why not put that back in under the offer and acceptance section? But everything there otherwise is already covered in the article. Wikidea 17:29, 14 July 2007 (UTC)

Sorry, I should've been clearer. What I meant was, I agree with the idea that there should be a section explaining the difference between unilateral and bilateral contracts explicitly. enochlau (talk) 23:05, 14 July 2007 (UTC)

And some reference to Harvela and the terminology "synallagmatic" wouldn't go amiss. Carlill is by no means the last word on the subject. Tendering cases are very important in present day commercial law. Francis Davey 18:07, 16 July 2007 (UTC)

[edit] Contractual holdup

I have located information on an early case that is used to establish precedence regarding contractual holdup practices, and I wanted to make anyone interested in this article aware of it. See Baker v. Morton, an 1870 SCOTUS trial, and Omaha Claim Club. The citation is [1]. – Freechild (BoomCha) 06:17, 15 July 2007 (UTC)

[edit] law of contract

what is the deferrence between agreement and contract? —Preceding unsigned comment added by 81.199.17.19 (talk) 09:34, 4 March 2008 (UTC)

I assume what the previous contributor meant to ask is: What is the difference between an agreement and a contract? I'd agree that there should be a paragraph on or some mention of that. That is particularly important because "agreement" only has an disambiguation link leading here. There seems to be some distinction between the two. Could one of the experts kindly attend to this question. Thks. Lisa4edit —Preceding unsigned comment added by 71.236.23.111 (talk) 08:15, 6 April 2008 (UTC)

The lead sentence of the article says inter alia that a contract is an agreement that the law will enforce. Legis Nuntius (talk) 07:11, 29 May 2008 (UTC)