A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

CONTRACT.

Contract, (called by the Civilians acceptilati) is an agreement between parties concerning goods or land•• for money or other recompence: It is called a contract because by covenanting diversae v••luntates in unum contrahuntur. It is a bargain* 1.1 or covenant between two parties, where one thing is given for another, which is called Quid pr•• Q••, as if you sell my horse for twenty Shillings, you may keep the horse till the other have paid the money. The want of recompence causeth it to be but nudum pactum, unde non oritur ••••••••••. For if a man make promise to me, that I shall have twenty shillings, and after I ask it, and he will not deliver it; yet you shall never have any action to recover it, because this promise was no contract,

but a bare promise; but if any thing were given for the twenty shillings, though it were but to the value of a penny, then it had been a good con∣tract.

If he to whom the promise is made, have a charge by reason of the promise, which he hath also performed, then in that case he shall have an Action for the thing that was promised, though he that made the promise have no worldly profit by it. As if a man say to another, Heal such a poor man of his d••sease, or make an High-way, and I shall give thee thus much; and* 1.2 if he do it, I think an Action lyeth at the Com∣mon Law.

This word (pro) makes a contract conditi∣onall; as if I Covenant to make an estate pro maritagio habendo; if the marriage take not effect, I shall be discharged of this Covenant. So if an Annuity be granted, pro consilio impendendo, stop the Counsell giving, and stop the Annuity;* 1.3 also if a man grant a way over his Land, and pro chimino illo habendo, he granteth to him a rent-charge: if one be stopped, the other is stopped; so it is in contracts; As for a Hawk to be delivered me at such a day, you shall have my horse at Christmass; if the Hawk be not de∣livered at the day, you shall not have an Action for the horse.

The Infants contract for his meat, apparell, and necessaries is good, if he be of the age of fourteen years.

Notes

• * 1.1

  Contra∣ctus est quasi actus contra actum. Cook.
• * 1.2

  D. and Student▪ cap. 4.
• * 1.3

  L. Dyer ter∣min. Mi∣chael Anno 6 E. 6. P. 76