Contracts

The contract makes the law for the parties.

Contractus legem dat contractui.

Source: BL4 "Contractus"; Bouv. 135; Allen v. Merch. Bank of N.Y., 22 Wend. (N.Y.) 215, 233

Within the bounds of law and public right, the contract is the supreme authority governing the parties — and only the parties.

A contract is, as it were, act for act — a reciprocal exchange.

Contractus est quasi actus contra actum.

Source: 2 Co. 15; Jackson 146; Weisman, 24b

Every valid contract requires mutuality — each party gives and each party receives. One-sided compulsion is not contract.

From a bare agreement without consideration, no action arises.

Ex nudo pacto non oritur actio.

Source: Bracton, fol. 99; Plowd. 305; Fleta, lib. 2, c. 56, s. 3; 2 Bl. Comm. 445; Jackson 246; Weisman, 5m

No obligation is created where nothing of value passes between the parties — consideration is the life of a contract.

A naked contract exists where there is no consideration besides the agreement itself; but where there is consideration, an obligation is created and an action lies.

Nudum pactum est ubi nulla subest causa praeter conventionem; sed ubi subest causa, fit obligatio, et parit actionem.

Source: Plowd. 309; Broom, Max. 745, 750; Dig. 2, 14, 7, 4; 2 Bl. Comm. 445; Jackson 721; Weisman, 24bb

The dividing line between an enforceable contract and a mere promise is consideration — something of value exchanged. Without it, no court will compel performance.

Private contracts cannot derogate from public right.

Conventio privatorum non potest publico juri derogare.

Source: Wing. Max. 201; 7 Co. 23; Co. Litt. 166a; Dig. 50, 17, 45, 1; Broom, Max. 695; Jackson 149; Weisman, 24i

This is the master rule of contract law in the constitutional order. No contract — whether between private parties or between a citizen and the government — can bargain away the rights of the People. Government cannot contract away the constitution.

A contract founded on a base consideration, or against good morals, is null.

Contractus ex turpi causa, vel contra bonos mores, nullus est.

Source: Hob. 167; Broom, Max. 730, 732; Dig. 2, 14, 27, 4; Code 2, 3, 6; Weisman, 24p

An agreement rooted in illegality or immorality confers no rights and creates no duties — the law will not enforce what it forbids.

In contracts, the truth of the matter ought to be regarded rather than the writing alone.

In contractibus, rei veritas potius quam scriptura perspici debet.

Source: Code 4, 22, 1; Weisman, 24j

Courts look through the written form to the true nature of the transaction — relabeling an agreement does not change its substance.

No contract can arise from an act radically wrong and illegal.

Ex maleficio non oritur contractus.

Source: 1 Term 734; 3 Term 422; Broom, Max. 734; Jackson 247; Weisman, 24z

An agreement rooted in illegality is void ab initio — no man gains rights by his own wrongdoing.