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A contract is any promise or set of promises made by one party to another for the breach of which the law provides a remedy. The promise or promises may be express (either written or oral) or may be implied from circumstances.
Typically, the remedy for breach of contract is an award of money damages intended to restore the injured party to the economic position that he or she expected from performance of the promise or promises (known as an "expectation measure" of damages).
Occasionally a court will order a party to perform his or her promise (an order of "specific performance" or "quantum meruit"), but this remedy is unusual. In the civil law, contracts are considered to be part of the general law of obligations.
Basic common law contract law addresses four sets of issues:
Contract formation: Generally, formation of a contract requires that parties mutually assent to a bargain and a consideration or consideration substitute.
Escape from contract: A party may in some cases escape obligations established by a contract for one of the following reasons:
Many contract disputes involve a disagreement between the parties about what the contract requires. Hence, many rules of contract law pertain to interpretation of terms of a contract that are vague or ambiguous.
For a contract to be agreement. In modern practice, whether there has been an agreement is determined objectively, not subjectively. Thus, it is no defense to an action based on a contract for the defendant to claim that he never intended to be bound by the agreement if under all the circumstances it is shown at trial that his conduct was such that it communicated to the other party or parties that the defendant had in fact agreed. Signing of a contract is one way a party may show his assent. Alternatively, an offer consisting of a promise to pay someone if the latter performs certain acts which the latter would not otherwise do (such as paint a house) may be accepted by the requested conduct instead of a promise to do the act. The performance of the requested act indicates objectively the party's assent to the terms of the offer.
Contrary to common wisdom, an informal exchange of promises can still be binding and legally as valid as a written contract. A spoken contract is often called an "oral contract", not a "verbal contract". A verbal contract is simply a contract that uses words. All oral contracts and written contracts are verbal contracts. Contracts that are created without the use of words are called "non-verbal, non-oral contracts".
Courts in the United States have generally ruled that if the parties have a meeting of the minds and act as though there was a formal, written and signed contract then a contract exists. However, most jurisdictions require a signed writing for certain kinds of contracts (like real estate transactions); the legislation setting out such requirements are typically entitled the Statute of Frauds. The point of the Statute of Frauds is to prevent false allegations of the existence of contracts that were never made, by requiring formal (i.e. written) evidence of the contract.
Furthermore, the existence of a written contract does not necessarily ensure its enforceability or validity. A contract can be deemed unenforceable if it requires a party to undertake an illegal act, if it was signed under duress or while intoxicated, if the disparity in knowledge between the parties is extreme and the weaker party was given onerous terms, etc.
There are three classifications of contracts that are not binding. A contract is void if it is based on an illegal purpose or contrary to public policy. It will not be recognized by court or enforceable by either party. A contract is voidable if one of the parties has the option to terminate the contract. Contracts with minors are examples of voidable contracts. Finally, a contract is unenforceable if it violates the Statute of frauds. An example of the above is an oral contract for the sale of a motorcycle for $5,000 (any contract for the sale of goods over $500 must be in writing to be enforceable).
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. The most common type of unilateral contract is an 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.
A contract can be either an express contract or an implied contract. An express contract is one in which the terms are expressed verbally, either orally or in writing. An implied contract is one in which some of the terms are not expressed in words.
An implied contract can either be implied in fact or implied in law. A contract which is implied in fact is one in which the circumstances imply that parties have reached an agreement even though they have not done so expressly. For example, by going to a doctor for a physical, a patient agrees that he will pay a fair price for the service. If he refuses to pay after being examined, he has breached a contract implied in fact.
A contract which is implied in law is also called a quasi-contract, because it is not in fact a contract; rather, it is a means for the courts to remedy situations in which one party would be unjustly enriched were he or she not required to compensate the other. For example, an unconscious patient treated by a doctor at the scene of an accident has not agreed (either expressly or by implication) to pay the doctor for emergency services, but the patient would be unjustly enriched by the doctor's services were the patient not required to compensate the doctor.
The rules by which many contracts are governed are provided in specialized statutes that deal with particular subjects. Most countries, for example, have statutes which deal directly with sale of goods, lease transactions and trade practices. There are also many acts around the world which deal with specific types of transactions and businesses. For example, the states of California and New York in the U.S. have statutes that govern the provision of services to customers by health studios, and the UK has the Sale of Goods Act 1979 which governs the contracts between sellers and buyers.
Contract theory is the body of legal theory that addresses normative and conceptual questions in contract law. One of the most important questions asked in contract theory is why contracts are enforced. One prominent answer to this question focuses on the economic benefits of enforcing bargains. Another approach, associated with Charles Fried, maintains that the purpose of contract law is to enforce promises. This theory is developed in Fried's book, Contract as Promise. Other approaches to contact theory are found in the writings of legal realists and critical legal studies theorists.
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