&c. CONTRACTS, which are unattainable: whence it follows, that no right can be created, nor obligation be incurred, by a contract to perform any thing which is naturally impossible. And, therefore, as has been observed in a preceding title, were one man absurd enough to covenant with another to build him a large house in a day; or touch the sky with his hand, or such like impossibilities; these contracts would be void; and the party, undertaking to accomplish them, would be subject to no action, even for damages accruing by reason of non-performance P. For it cannot be supposed that what is absolutely impossible can have been seriously the subject of deliberation between the parties, for no man in his senses would deliberate about what is absolutely out of his power. But a distinction is to be taken between things physically impossible, (the impracticability of accomplishing which, must be evident to all the parties at the time of contracting) and things not physically impossible, but of which the impossibility of accomplishing arises from circumstances peculiar to the party contracting; for in the latter cases, although the main contract will necessarily be inoperative on account of the inability of the party to perform it; as if a man contract to sell an estate, the title to which is in another person, or the like; yet that will not discharge the person contracting, from being answerable in damages to the other party, for any loss which he may sustain by the imposition; for although when a person covenants through remissness, or negligence, to undertake an impossibility, the main undertaking must be void, so far as goes to his capacity of performing, yet, upon default in the stipulator, the law will oblige him to answer in damages any detriment the other may have sustained by the non-performance, as a compensation for the loss of the Bro. tit. Faits, 37; and see Fitzh. Oblig.13; Puffend. lib. 3, s. 2; and Ibid. note 1 ; 40 E. 3, 6a; and see Co. Lit. 206, a. n. (1). 1 Tr. Eq. 8vo. 211. &c. thing contracted for, as there is presumed to be a tacit CONTRACTS, condition reserved in the mind of every contracting party, that the thing stipulated be practicable to the party stipulating. And therefore, per curiam, in Thornborough v. Whitacres, if a man will, for a valuable consideration, undertake a thing impossible with respect to his ability, that will not make the contract void; for though the contract be a foolish one, yet it will hold in law, and the party ought to pay something for his folly; for a man may bind himself to do any thing which is not physically impossible; and it will be at his peril if he do not perform it'; the legal distinction between a near and a remote possibility, not being regarded in executory contracts". And, therefore, if A. covenant with B. that in case he die without issue, he will give his lands in D. to his brother; a court of equity will carry this agreement into execution, upon the contingency happening, although a limitation in a deed" after dying without issue" would be void. So a covenant to settle lands, of which a man has only a possibility of descent, will be carried into execution in equity: for a decree of that court does not attach upon the interest in the land stipulated about; but the court enforces the performance of the agreement specifically, by its process against the person, to compel him to execute it". The subject of every contract must, moreover, be a thing morally and legally, as well as naturally possible to be performed; for it is not enough, that an agreement be made with the consent of the parties, but to make it obligatory, the subject of it must be such as men have a lawful right of stipulating about (1); for it would be absurd that an obliga 'See Cornwall v. Williams, cited 1 Pow. Contr. 117. 2 Lord Raymond, 1164; 6 Mod. 305. t 1 Rol. Abr. 419; Chomley's case, 2 Co. 51. "Tr. Eq. 8vo. 21. v 1 Pow. Contr. 164. (1) Puff. b. 3, c. 7, s. 6. Pacta qua contra leges constitu tionesque vel contra bonos mores nullam vim habere indubitat D 3 juris &c. CONTRACTS, tion that derives its sanction from the law should put us under the necessity of doing something which the law prohibits and it may be also fairly presumed, that where the object of an agreement is contrary to moral rectitudę, the contracting party must have been taken by surprise, and could not have given his full and free assent to it; besides that the law, by forbidding such an agreement to be made, deprives the contractor of the ability to perform it, and consequently prevents the other party from acquiring any right to compel its performance. Illegal subject of contracts. Hence it will be proper to inquire what matters are for-` bidden by law to be the subject of a contract. Things forbidden by law to be the subject of stipulation, are, 1st, Such as enjoin the commission of what is either malum in se, or malum prohibitum: 2dly, Such as enjoin the omission of that which the interests of society require should be performed: and, 3dly, Such as promote or encourage such acts, or omissions". But these have been already considered under the head of conditions void on those grounds, with respect to which and contracts, the law is, I apprehend, precisely the same. It has been there shown, we may 'recollect, that under the head of contracts. void as enjoining or encouraging the commission or omission of things unlawful in themselves, or mala in se, are included principally, all such things as are forbidden either by the laws of nature, or the express word of God, as to commit murder, adultery, &c. And within the second or mala prohibita, (i. e. things contrary to the laws of the land), are included, whatever is either repugnant to the welfare of Treat. Eq. 8vo. 223. See Mitchell v. Reynolds, i P. Wms. 191. * See vol. iii. p. 274; also Treat. Eq. book i. c. 4; and Fonblanque's notes there. juris est. Cod. Lib. 2, t. 3, 1. 6. “ A rule evidently drawn from the principles of universal justice, which, aiming at the prevention of wrong, prohibit agreements which would lead to or encourage wrong." 1 Fonb. Eq. 224, n. (§). &c, the state; against any maxim of law; or in contradiction CONTRACTS, to some positive statute; amongst which are agreements respecting unlawful maintenance; or encouraging suits and animosities by helping to bear the expense of them; agreements entered into with a sheriff for fees, provisions, &c.; marriage brokerage contracts, or contracts for assisting in promoting marriages; contracts entered into in consideration of illicit cohabitation; contracts entered into for the purpose of evading the law; contracts having any fraudulent objects in view; contracts of an unfair nature in respect of their influence on third persons, although not se as between the parties themselves; (as agreements contra fidem tabularum nuptialium, or in derogation of the rights of marriage; agreements between a debtor and some of his creditors, to the prejudice of the rest, and the like); agreements for the sale of offices; agreements for more than legal interest; agreements by a bankrupt, or other person on his behalf to pay money to a creditor for signing his certificate; contracts for insuring lottery tickets; con- Futile agreetracts self-evidently useless, and tending to no consequence when put in execution; contracts wantonly tending to affect the interest or feelings of third persons, and others there enumerated; to which may be added, contracts affected by the practice of puffing, as it is called, at auctions, which in Bexwell v. Christie', was considered as illegal; but the legislature having since that case enacted, that property put up to sale at auction shall, upon the knocking down of the hammer, subject the auctioneer to the payment of certain duties, unless such property can, by the mode prescribed by the act, be shown to have been bought in by the owner himself, or by some person by him authorized. This ments. &c. CONTRACTS, statute has, in the opinion of some, indirectly given a sanction to this practice. The courts, however, appear to have considered this case as not affected by the statute alluded to, and that such a practice is still illegal, and invalidates the salef. Consideration of an agree ment. IV. OF THE CONSIDERATION NECESSARY TO SUPPORT sup A CONSIDERATION is the material cause or chief port of an agreement; it being that in expectation of which each party is induced to give his assent to what is stipulated. It is not however necessary, in general, that the consideration should appear, nor indeed, if the contract be in writing and legally executed, that there should be any consideration in order to substantiate the transaction; for a man having the jus disponendi of his property, may make a voluntary donation of it to another, if he think proper: a consideration, therefore, is requisite to the validity of a contract only when it vests in fieri, and requires the aid of a court of equity to enforce a specific execution of it, which, guided by the maxim of the civil law, ex nudo pacto non oritur actio, they will not do unless it is supported by some adequate consideration; for in the case of a deed or agreement executed, a consideration is in no case essential by the common law," for although a verbal contract is not binding without a consideration, because words often pass from men lightly and inconsiderately, which may justify a suspicion of imprudence or even fraud, yet when an agreement is made by deed, which must necessarily be made with more thought and deliberation, all suspicion of surprise or deceit is excluded. A consideration may be either good or valuable: a good consideration, is that which arises or is imposed by some natural motive or moral obligation, as in the love a parent See Howard v. Castle, 6 ford v. Preston, 8 Ib. 95. * Plowd. 308; 3 Bur. 1670. |