Contract law in 1700 and Today

Jenna Doucet (2010).

Contract Law in 1700 and Today

Today, for a contract to be legally binding it must satisfy six conditions; First, the law demands that both parties agree to the contract and give their mutual and non- coerced consent. Second is that the contract “consists of an offer and acceptance of that offer” (Wald, n.d, p. 1). The third condition is contractual capacity of the individuals’ involved whereas each party must not suffer mental illness or be a minor. The fourth condition is purpose; as such the contract must concern an agreed upon good or service. The fifth requirement of a valid contract is that the subject matter must be legal. Last, the compliance of legal formalities such as a valid written instrument is used (Wald, n.d).

The agreement between Lord March and Mr. Pigot of running Mr. Codrington’s father against Mr. Pigot’s father does not satisfy those six conditions and thus today cannot be considered a legally binding contract. The fourth condition of purpose, described by the law as an exchange of an agreed upon good or service, is lacking. Thus, the agreement most closely resembles a wagering contract. According to the Merriam-Webster dictionary, the term wager dates back to the 14th century and describes the act of putting something up, such as a sum of money, on the risk that a uncertain event take place.

In the eightieth century, at common law in England “ wagers on almost all subjects were enforceable” (Clark, 1914, p. 241). Thus the arrangement between Mr. March and Mr. Pigot, having occurred in 1700, would have been considered a valid contract. In fact, the case of Mr. March v. Mr. Pigot was brought before the King’s Bench, as it was later known to the parties that Mr. Pigot’s father had already died prior to the agreement. Mr. Pigot had refused to pay Mr. March on the grounds that the “ contract was void: it was without any consideration; for there was no possibility of the defendant’s winning, (his father then being actually dead) and therefore he ought not lose” (Comyn, 1819, p. 476). The court ruled in the favor of the plaintiff as it was determined that such a wager was not illegal; and the mere fact that one of the son’s father’s was already dead at the time of wager did not void the contract, provided it was an unknown fact to both parties.

Had Mr. Pigot been 16 years old at the time of the arrangement, the contract would have most likely been found void. A paper written by Lassonde (2008) exploring childhood throughout the centuries, identified that in order to be found legally responsible under many proceedings, an individual must be an adult. In the 1700’s “Roman law remained a powerful influence” (para 10). Under Roman law 25 was the age of adulthood (para 10).

Today, although wager contracts are not considered illegal, they are considered to be void and losses resulting from a wager cannot be recovered in a court of law. Hilliard (1848) discusses the validity of wagers and found that in most jurisdictions, “ it seems all wagers are void” (p. 102). The notes made by Mr. March and Mr. Pigot closely resembled and could have been considered promissory notes. Yates, Bereznicki-Korol and Clarke, (2008) state, “ a promissory note involves only two parties. The maker promises to pay a certain sum to the payee at a specified future date or on demand.” Today, however; promissory notes made in connection with wagers are not enforceable. In the case of Kentucky off-track betting, Inc (KOTB) v. McBurney, involving the defendant’s failure to pay sums advanced by KOTB for purposes of wagering, as defined by promissory notes, the court found the notes void (McBurney v. KOTB, 1999).

After 1774, the arrangement between the two sons would not have been considered a legal contract of insurance because a statute was passed prohibiting all insurances except in which the persons insuring shall have an interest in the life or death of the person insured. Furthermore, under no circumstances should the interest rest only by way of gaming or wagering. Furthermore, the Act states, “ every insurance made contrary to the meaning thereof should be null and void to all intents and purposes” (Comyn, 1819, p. 21).

In the 1700s the arrangement made between the two sons was perfectly legal and enforceable. In today’s society however, no matter how the arrangement could be argued, by presence of promissory notes or even by contract of insurance, the contract would be found void.

References

Clark, W. (1914). Handbook of the law of contracts (3rd ed.). New York:
West Publishing Co.

Comyn, S. (1819). A treatise of the law relative to contracts and
agreements not under seal: with cases and decisions thereon in the action
of assumpsit (2nd ed.). New York: Gould and Banks.

Hilliard, F. (1848). The elements of the law. New York: John S. Voorhies.

KOTB v. James McBurney, 98-SC-454-DG (1999).

Lassonde, S. (2008). Age and Development. Encyclopedia of children and
childhood in history and society. The Gale Group Inc. Retrieved on
January 15, 2010 from: www.faqs.org/childhood/A-Ar/Age-And
Development.html

Wager. (2010). In Merriam- Webster online dictionary. Retrieved January 14,

2010 from www.merriam-webster.com

Wald, M. (n.d). Requirements of a valid contract. Wald, Wald &

Associates. Retrieved on January 14, 2010 from:

www.dallastexaslaw.com

Yates, A., Bereznicki-Korol, T. & Clarke, T. (2008). Business law in Canada
(8th ed.). Canada: Pearson Education Canada.