AGREEMENT

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AGREEMENT


AGREEMENT, contract. The consent of two or more persons concurring, respecting the transmission of some property, right or benefit, with a viewof contracting an obligation. Bac. Ab. h.t.; Com. Dig. h.t.; Vin. Ab. h.t.;Plowd. 17; 1 Com. Contr. 2; 5 East's R. 16. It will be proper to consider,1, the requisites of an agreement; 2, the kinds of agreements; 3, how theyare annulled. 2.-1. To render an agreement complete six things must concur; theremust be, 1, a person able to contract; 2, a person able to be contractedwith; 3, a thing to be contracted for; 4, a lawful consideration, or quidpro quo; 5, words to express the agreement; 6, the assent of the contractingparties. Plowd. 161; Co. Litt. 35, b. 3.-2. As to their form, agreements are of two kinds; 1, by parol, or,in writing, as contradistinguished from specialties; 2, by specialty, orunder seal. In relation to their performance, agreements are executed orexecutory. An agreement is said to be executed when two or more persons makeover their respective rights in a thing to one another, and thereby changethe property therein, either presently and at once, or at a future time,upon some event that shall give it full effect, without either partytrusting to the other; as where things are bought, paid for and delivered.Executory agreements, in the ordinary acceptation of the term, are suchcontracts as rest on articles, memorandums, parol promises, or undertakings,and the like, to be performed in future, or which are entered intopreparatory to more solemn and formal alienations of property. Powell onCont. Agreements are also conditional and unconditional. They areconditional when some condition must be fulfilled before they can have fulleffect; they are unconditional when there is no condition attached; 4.-3. Agreements are annulled or rendered of no effect, first, by theacts of the parties, as, by payment; release - accord and satisfaction;rescission, which is express or implied; 1 Watts & Serg. 442; defeasance; bynovation: secondly, by the acts of the law, as, confusion; merger; lapse oftime; death, as when a man who has bound himself to teach an apprentice,dies; extinction of the thing which is the subject of the contract, as, whenthe agreement is to deliver a certain horse and before the time of deliveryhe dies. See Discharge of a Contract. 5. The writing or instrument containing an agreement is also called anagreement, and sometimes articles of agreement.(q.v.) 6. It is proper, to remark that there is much difference between anagreement and articles of agreement which are only evidence of it. From themoment that the parties have given their consent, the agreement or contractis formed, and, whether it can be proved or not, it has not less the qualityto bind both contracting parties. A want of proof does not make it null,because that proof may be supplied aliunde, and the moment it is obtained,the contract may be enforced. 7. Again, the agreement may be mull, as when it was obtained by fraud,duress, and the like; and the articles of agreement may be good, as far asthe form is concerned. Vide Contract. Deed; Guaranty; Parties to Contracts.

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