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1、1 of 165 DOCUMENTS Restatement of the Law, Second, Contracts Copyright (c) 1981, The American Law Institute Case Citations Rules and Principles Chapter 1 - Meaning of Terms Introductory Note A persistent source of difficulty in the law of contracts is the fact that words often have different meaning
2、s to the speaker and to the hearer. Most words are commonly used in more than one sense, and the words used in this Restatement are no exception. It is arguable that the difficulty is increased rather than diminished by an attempt to give a word a single definition and to use it only as defined. But
3、 where usage varies widely, definition makes it possible to avoid circumlocution in the statement of rules and to hold ambiguity to a minimum. In the Restatement, an effort has been made to use only words with connotations familiar to the legal profession, and not to use two or more words to express
4、 the same legal concept. Where a word frequently used has a variety of distinct meanings, one meaning has been selected and indicated by definition. But it is obviously impossible to capture in a definition an entire complex institution such as contract or promise. The operative facts necessary or s
5、ufficient to create legal relations and the legal relations created by those facts will appear with greater fullness in the succeeding chapters 2 of 165 DOCUMENTS Restatement of the Law, Second, Contracts Copyright (c) 1981, The American Law Institute Case Citations Rules and Principles Chapter 1 -
6、Meaning of Terms Restat 2d of Contracts, 1 1 Contract Defined A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. COMMENTS & ILLUSTRATIONS: Comment:a.Other meanings.The word contract is oft
7、en used with meanings different from that given here. It is sometimes used as a synonym foragreement or bargain. It may refer to legally ineffective agreements, or to wholly executed transactions such as conveyances; it may refer indifferently to the acts of the parties, to a document which evidence
8、s those acts, or to the resulting legal relations. In a statute the word may be given still other meanings by context or explicit definition. As is indicated in the Introductory Note to the Restatement of this Subject, definition in terms of promise excludes wholly executed transactions in which no
9、promises are made; such a definition also excludes analogous obligations imposed by law rather than by virtue of a promise.b.Act and resulting legal relations.As the term is used in the Restatement of this Subject, contract, like promise, denotes the act or acts of promising. But, unlike the term pr
10、omise, contract applies only to those acts which have legal effect as stated in the definition given. Thus the word contract is commonly and quite properly also used to refer to the resulting legal obligation, or to the entire resulting complex of legal relations. Compare Uniform Commercial Code 1-2
11、01(11), defining contract in terms of the total legal obligation which results from the parties agreement.c.Set of promises.A contract may consist of a single promise by one person to another, or of mutual promises by two persons to one another; or there may be, indeed, any number of persons or any
12、number of promises. One person may make several promises to one person or to several persons, or several persons may join in making promises to one or more persons. To constitute a set, promises need not be made simultaneously; it is enough that several promises are regarded by the parties as consti
13、tuting a single contract, or are so related in subject matter and performance that they may be considered and enforced together by a court.d.Operative acts other than promise.The definition does not attempt to state what acts are essential to create a legal duty to perform a promise. In many situati
14、ons other acts in addition to the making of a promise are essential, and the formation of the contract is not completed until those acts take place. For example, an act may be done as the consideration for a contract (see 71), and may be essential to the creation of a legal duty to perform the promi
15、se (see 17). Similarly, delivery is required for the formation of a contract under seal (see 95). Such acts are not part of the promise, and are not specifically included in the brief definition of contract adopted here.e.Remedies.The legal remedies available when a promise is broken are of various
16、kinds. Direct remedies of damages, restitution and specific performance are the subject of Chapter 16. Whether or not such direct remedies are available, the law may recognize the existence of legal duty in some other way such as recognizing or denying a right, privilege or power created or terminated by the promise.
