l6c) 1. An event that
mayor may not occur; a possibility. 2. The condition
ofbeing dependent on chance; uncertainty. 3. CONTIN
GENT FEE.
contingency beneficiary. See contingent beneficiary (I)
under BENEFICIARY.
contingency fee. See CO",TINGENT FEE.
contingency reserve. See contingent fund under FUND
(I).
contingency with a double aspect. A contingent remain
der existing along with a second remainder, the latter
remainder taking effect only if the first fails . In the
following example, this type ofremainder would arise
if A never has children: "to A for life, and if A has
children, then to the children and their heirs forever;
and if A dies without children, then to Band B's heirs
forever." See contingent remainder under REMAINDER.
[Cases: Remainders (;=.) 1.]
contingent (kdn-tin-jdnt), adj. 1. Possible; uncertain;
unpredictable <the trust was contingent, and the con
tingency never occurred>. 2. Dependent on something
else; conditional <her acceptance of the position was
contingent upon the firm's agreeing to guarantee her
husband a position as well>.
contingent annuity. See A~NUITY.
contingent beneficiary. See BENEFICIARY.
contingent claim. See CLAIM (4).
contingent debt. See DEBT.
contingent demand. See DEMAND (1).
contingent estate. See ESTATE (1).
contingent fee. (17c) A fee charged for a lawyer's services
only if the lawsuit is successful or is favorably settled
out ofcourt.  Contingent fees are usu. calculated as a
percentage of the client's net recovery (such as 25% of
the recovery if the case is settled, and 33% if the case
is won at trial). Also termed contingency fee; con
tingency; conditional fee. [Cases: Attorney and Client
(;::::c 146.]
reversecontingentfee. A fee in which a defense lawyer's
compensation depends in whole or in part on how
much money the lawyer saves the client, given the
client's potential liability so that the lower the set
tlement or judgment, the higher the lawyer's fee.
For example, if a client might be liable for up to $2
million, and agrees to pay the lawyer 40% of the dif
ference between $1 million and the amount of the
settlement or judgment, then a settlement of $800,000
would result in a fee of$80,000 (40% ofthe $200,000
under the threshold amount of $1 million). -Also
termed negative contingent fee; defense contingent fee;
reverse bonus. [Cases: Attorney and Client y 146.]
contingent fund. See FUND (1).
contingent guaranty. See GUARANTY.

363 continuing
contingent interest. See INTEREST (2).
contingent-interest mortgage. See MORTGAGE.
contingent legacy. See LEGACY.
contingent liability. See LIABILITY.
contingent ownership. See OWNERSHIP.
contingent remainder. See REMAINDER.
contingent trust. See TRUST.
contingent use. See USE (4).
contingent will. See WILL.
continual claim. Rist. A formal claim to a tract ofland
made by an: out-of-possession owner who is deterred
from taking possession by a menace of some type.
-The claim -called continual because it had to be
renewed annually -preserved the claimant's right to
the land. The owner had to make the claim as near to
the land as could be done safely. This procedure gave
the disseised person the same benefits (such as the right
to devise the land) as a legal entry. The continual claim
was abolished early in the 19th century.
"Continual claim is. where a man hath right to enter into
certain lands whereof another is seised in fee, or fee
tail. and dares not enter for fear of death or beating. but
approaches as nigh as he dares. and makes claim thereto
within the year and day before the death of him that hath
the lands ...." Termes de fa Ley 114 (lst Am. ed. 1812).
continual injury. See INJURY.
continuance, n. (l4c) 1. The act ofkeeping up, maintain
ing, or prolonging <continuance of the formal tradi
tion>. 2. Duration; time of continuing <the senator's
continuance in office>. 3. Procedure. The adjournment
or postponement of a trial or other proceeding to a
future date <motion for continuance>. Cf. RECESS (1).
[Cases: Federal Civil Procedure Pretrial Pro
cedure (,.'='711.] -continue, vb.
continuando (k;m-tin-yoo-an-doh). [Law Latin "by con
tinuing"] Rist. An allegation charging that the trespass
. or other wrongful act complained of constitutes a con
tinuing tort against the plaintiff's property.
"In trespasses of a permanent nature, where the injury
is continually renewed, (as by spoiling or consuming the
herbage with the defendant's cattle) the declaration may
allege the injury to have been committed by continuation
from one given day to another, (which is called laying
the action with a continuando) and the plaintiff shall not
be compelled to bring separate actions for every day's
separate offence." 3 William Blackstone, Commentaries
on the Laws ofEngland 21 2 (1768).
continuation. Patents. A patent application that is based
on the same disclosure and claiming the same inven
tion as a rejected parent application but containing
some change in the scope of the claims. _ A continu
ation application maintains the original filing date for
prior-art and interference purposes, as long as it is filed
while the parent application is still pending, has at least
one inventor in common with the parent application,
and refers to the parent application. Also termed
continuation application; continuation-in-whole appli
cation; continuing application; f71e-wrapper continuing
application. Cf. CONTINUATION-IN-PART; continued-prosecution application under PATENT APPLICATION;
REQUEST FOR CONTINUED EXAMINATION. [Cases:
Patents no.]
continuation agreement. (1942) Partnership. An agree
ment among the partners that, in the event ofdissolu
tion, the business ofthe partnership can be continued
without the necessity of liquidation. Cf. BUY-SELL
AGREEMENT (1). [Cases: Partnership (;:=>277.]
"Normally, a continuation agreement would have some type
of provision for purchaSing the interest of a deceased or
expelled partner. However, such a provision is not neces
sary. Courts have enforced agreements that give the estate
of the deceased partner nothing." Harold Gill Reuschlein
&William A. Gregory, The Law ofAgency and Partnership
 269. at 461 (2d ed. 1990).
continuation application. 1. See CONTINUATION. 2. See
CONTINUATION-IN-PART.
continuation-application laches doctrine. Patents. An
equitable defense to patent infringement, based on an
assertion that the patentee deliberately delayed the
issuance of the patent-in-suit by filing multiple con
tinuing applications that added new patent claims to
cover products marketed or processes used after the
original application was filed. -Also termed prosecu
tionlaches doctrine. See SUBMARINE PATENT. [Cases:
Patents (::;:::::'289(2).]
continuation-in-part. Patents. A patent application
filed by the same applicant during the pendency ofan
earlier application, repeating a substantial part of the
earlier application but adding to or subtracting from
the claims. 35 USCA  120. This type of application
contains new technical descriptions from the inventor
or reflects improvements made since the parent appli
cation was filed. A claim in a continuation-in-part
application is entitled to the benefit of the parent appli
cation's filing date if the claimed subject matter is the
same, but the new matter takes the filing date of the
continuation-in-part application. Continuation-in
part applications are usu. filed to describe and claim
later-discovered improvements to an invention, or to
distinguish the invention from some prior-art refer
ence. -Abbr. CIP. -Also termed continuation-in
part application; continuation application; continuing
application; file-wrapper continuation application. Cf.
CONTINUATION. [Cases: Patents (;:=> llO.]
continuation-in-part application, See CONTINUATION
IN-PART.
continuation-in-whole application. See CONTINUATION
(2).
continued bond. See annuity bond under BOND (3).
continued-custody hearing. See shelter hearing under
HEARING.
continued meeting. See MEETING.
continued-prosecution application. See PATENT APPLI
CATION.
continuing, adj. (14c) 1. Uninterrupted; persisting
<a continuing offense>. 2. Not requiring renewal;

364 continuing annuity
enduring <continuing stockholders> <continuing
jurisdiction>.
continuing annuity. See survivorship annuity under
ANNUITY.
continuing application. See PATENT APPLICATION.
continuing breach. See BREACH OF CONTRACT.
continuing consideration. See CONSIDERATION (1).
continuing contract. See CONTRACT.
continuing covenant. See COVENANT (1).
continuing damages. See DAMAGES.
continuing guaranty. See GUARANTY.
continuing harm. See continuing injury under INJURY.
continuing injury. See INJURY.
continuingjudidal education. (1964) Continuing legal
education for judges, usu. organized and sponsored by
a governmentally subsidized body and often involv
ing topics such as judicial writing, efficient decision
making, caseload management, and the like. Abbr.
CJE.
continuing jurisdiction. See JURISDICTION.
continuing-jurisdiction doctrine. (1966) 1. The rule that
a court retains power to enter and enforce a judgment
over a party even though that party is no longer subject
to a new action. lCases: Courts C~)30.12. Family law.
The rule that once a court has acquired jurisdiction
over a child-custody or support case, that court con
tinues to have jurisdiction to modify orders, even ifthe
child or a parent moves to another state. Child
Custody C=>745; Child Support
continuing legal education. (1948) 1. The process or
system through which lawyers extend their learning
beyond their law-school studies, usu. by attending
seminars designed to sharpen lawyering skills or to
provide updates on legal developments within partic
ular practice areas . In many jurisdictions, lawyers
have annual or biennial requirements to devote a
given number of hours (usu. 12-15) to continuing
legal education. [Cases: Attorney and Client 2.
The enhanced skills or knowledge derived from
process. 3. The business field in which educational pro
viders supply the demand for legal seminars, books,
audiotapes, and videotapes designed to further the edu
cation oflawyers. -Abbr. CLE.
continuing nuisance. See NUISANCE.
continuing objection. See OBJECTION.
continuing offense. See OFFENSE (1).
continuing part-time judge. See JUDGE.
continuing threat of harm. A condition or situation
that presents a high risk ofinjury at intervals or over
an extended period, whether or not an injury has
actually occurred . The condition or situation can be
a behavior that is subject to repetition, as with unfair
competition practices or stalking, or an enduring state,
such as environmental contamination. Also termed
threat ofcontinuing harm; continuing threat ofinjury; threat ofcontinuing injury. Cf. continuing injury under
INJURY.
continuing trespass. See TRESPASS.
continuing-violation doctrine. Employment law. The
judge-made rule that if an employer's discriminatory
acts are of an ongoing nature, the statute oflimitations
will be extended to allow the plaintiff to recover even
when a claim based on those acts would otherwise be
time-barred. [Cases: Limitation ofActions ~58(1).]
continuing warranty. See promissory warranty under
WARRANTY (3).
continuing wrong. See WRONG.
continuity (kon-ti-n[y]oo-<l-tee). l. Int'llaw. The princi
ple that upheavals and revolutions within a country
as well as changes in governmental forms, the extent
of a country's territory, and measures taken during a
military occupation do not affect the existence of
the country and therefore cannot lead to its extinction.
2. Patents. The rule that a continuation or divisional
patent application carries the effective filing date of
its parent application if (1) the parent application fully
discloses the same invention, (2) there is at least one
common inventor, and (3) the parent application was
still pending when the latter application was ftied . A
continuation-in-part application carries the effective
filing date for everything disclosed in the parent appli
cation, but not for new material. 35 USCA  120.
Also termed doctrine ofcontinuity. Cf. HIATUS. [Cases:
Patents ~110.]
continuity of business enterprise. (1980) Tax. A
doctrine covering acquisitive reorganizations whereby
the acquiring corporation must continue the target cor
poration's historical business or must use a Significant
portion ofthe target's business assets in a new business
to qualify the acquisition as a tax-deferred transaction.
[Cases: Corporations C:-445.1.]
continuity-of-enterprise doctrine. See SUBSTANTIAL
CONTINUITY DOCTRINE.
continuity-of-entity doctrine. See MERE-CONTINUA
TION DOCTRINE.
continuity of existence. See CONTINUlTY-OF-LlFE
DOCTRINE.
continuity ofinterest. (1974) 1. Tax. A doctrine covering
acquisitive reorganizations whereby a target corpor


ity ofinterest. (1974) 1. Tax. A doctrine covering
acquisitive reorganizations whereby a target corpora
tion's shareholders must retain a share in the acquiring
corporation to qualify the acquisition as a tax-deferred
transaction. 2. A judicial requirement for divisive reor
ganizations whereby a target corporation's shareholders
must retain an interest in both the distributing and
the controlled corporations to qualify the exchange as
a tax-deferred transaction. [Cases: Internal Revenue
(;:)3677.]
continuity-of-life doctrine. The principle that the
withdrawal, incapacity, bankruptcy, or death of the
owner of an entity (esp. a corporation) does not end
the entity's existence. -Also termed continuity ofexis
tence. [Cases: CorporationsC=>36.]

365
continuous-adverse-use principle. The rule that the
uninterrupted use of land -along with the other
elements of adverse possession - will result in a suc
cessful claim for adverse possession. -Also termed
uninterrupted-adverse-use principle. See ADVERSE POS
SESSION. [Cases: Adverse Possession (>44.]
continuous crime. See CRIME.
continuous easement. See EASEMENT.
continuous injury. See continual injury under INJURY.
continuous-operations clause. Oil & gas. A provision
in an oil-and-gas lease giving the lessee the right to
continue any drilling well that was begun before the
lease expired and to begin drilling more wells. See
OPERATIONS CLAUSE. [Cases: Mines and Minerals (>
78.1(9).]
continuous policy. See INSURANCE POLICY.
continuous-representation doctrine. The principle that
the limitations period for bringing a legal-malpractice
action is tolled as long as the lawyer against whom the
action is brought continues the representation that is
related to the negligent act or omission. [Cases: Limita
tion ofActions (>55(3).]
continuous servitude. See continuous easement under
EASEMENT.
continuous-treatment doctrine. (1962) The principle
that the limitations period for bringing a medical
malpractice action is tolled while the patient contin
ues treatment that is related to the negligent act or
omission. [Cases: Limitation ofActions (>55(3).]
continuous trigger. See TRIPLE TRIGGER.
contio (kon-shee-oh), n. [Latin] Roman law. 1. A public
meeting to which participants have been summoned
by a magistrate. 2. A speech delivered at a public
meeting. -Also spelled cancio. PI. contiones (kon
shee-oh-neez).
contor. See COUNTER.
contort (kon-tort), n. 1. (usu. pI.) The overlapping
domain ofcontract law and tort law.
"I have occasionally suggested to my students that a desir
able reform in legal education would be to merge the first
year courses in Contracts and Torts into a single course
which we could call Contorts." Grant Gilmore, The Death
of Contract 90 (1974).
2. A specific wrong that falls within that domain. 3.
Informal. A constitutional tort. See constitutional tort
under TORT.
contra (kon-tr;:J), prep. (15c) Against or contrary to . As
a citation signal, contra denotes that the cited author
ity supports a contrary view. In old law reports, contra
often identifies the defendant's attorney (pro querente
refers to the plaintiff's).
"Observe in the note citing cases in support of a proposi
tion mentioned in the text whether any of the cases follow
the word contra, which means that a contrary rule has been
laid down in them." Frank Hall Childs, Where and How to
Find the Law 78-79 (1922).
contra account. See ACCOUNT. contract
contraband (kon-tr;:J-band), n. (16c) 1. Illegal or pro
hibited trade; smuggling. 2. Goods that are unlawful
to import, export, produce, or possess. -contraband,
adj.
absolute contraband. Goods used primarily for war,
such as arms and ammunition, as well as clothing
and equipment of a military character.
conditional contraband. Goods susceptible of being
used for warlike and peaceful purposes, such as coal
and food. -Also termed ancipitis usus (an-sip-i-t;:Js
yoo-s;:Js).
contraband per se. Property whose possession is
unlawful regardless of how it is used. Cf. derivative
contraband.
derivative contraband. Property whose possession
becomes unlawful when it is used in committing an
illegal act. Cf. contraband per se.
contra bonos mores (kon-tr;:J boh-nohs mor-eez). [Latin
"against good morals"] Offensive to the conscience and
to a sense ofjustice. Contracts contra bonos mores
are voidable. -Also termed contra bonos mores et
decorum; adversus bonos mores.
"Whatever is contra bonos mores et decorum, the principles
of our law prohibit, and the King's court, as the general
censor and guardian of the public manners, is bound to
restrain and punish." Jones v. Randall, 98 E.R. 706, 707
(1774) (per Mansfield, en.
contracausator (kon-tr;:J-kaw-zay-t;:Jr). Hist. A criminal;
a person prosecuted for a crime.
contraceptivism. Hist. The criminal offense of distribut
ing or prescribing contraceptives.
contract, n. (14c) 1. An agreement between two or more
parties creating obligations that are enforceable or
otherwise recognizable at law <a binding contract>.
[Cases: Contracts (>1.] 2. The writing that sets forth
such an agreement <a contract is valid if valid under
the law ofthe residence ofthe party wishing to enforce
the contract>.
"The term contract has been used indifferently to refer to
three different things: (1) the series of operative acts by
the parties resulting in new legal relations; (2) the physical
document executed by the parties as the lasting evidence
of their having performed the necessary operative acts
and also as an operative fact in itself; (3) the legal relations
resulting from the operative acts, consisting of a right or
rights in personam and their corresponding duties, accom
panied by certain powers, privileges, and immunities. The
sum ofthese legal relations is often called 'obligation.' The
present editor prefers to define contract in sense (3) ...."
William R. Anson, PrinCiples of the Law of Contract 13 n.2
(Arthur L. Corbin ed., 3d Am. ed. 1919).
"A contract is a promise, or a set of promises, for breach
of which the law gives a remedy, or the performance of
which the law in some way recognizes as a duty. This defi
nition may not be entirely satisfactory since it requires a
subsequent definition of the circumstances under which
the law does in fact attach legal obligation to promises.
But if a definition were attempted which should cover
these operative facts, it would require compressing the
entire law relating to the formation of contracts into a
single sentence." Samuel Williston, A Treatise on the Law
ofContracts 1,at 1-2 (WalterH.E.Jaegered., 3ded. 1957)
(footnote omitted).

366 contract
'The term 'contract' is also used by lay persons and
lawyers alike to refer to a document in which the terms of
a contract are written. Use of the word in this sense is by
no means improper so long as it is clearly understood that
rules of law utilizing the concept 'contract' rarely refer to
the writing itself. Usually, the reference is to the agreement;
the writing being merely a memorial of the agreement."
John D. Calamari &Joseph M. Perillo, The Law ofContracts
 1.1, at 3 (4th ed. 1998).
3. A promise or set of promises by a party to a trans
action, enforceable or otherwise recognizable at law;
the writing expressing that promise or set ofpromises
<when the lessor learned that the rooms were to be used
for the delivery of blasphemous lectures, he declined
to perform his contract>. See Restatement (Second) of
Contracts  2 (1979). lCases: Contracts ~1.]
"The promissory element present in every contract
is stressed in a widely quoted definition: 'A contract is
a promise, or set of promises, for breach of which the
law gives a remedy, or the performance of which the
law in some way recognizes as a duty: [1 Samuel Wil
liston, Contracts  1.1 (4th ed. 1990).] This, like similar
definitions, is somewhat misleading. While it is true that
a promise, express or implied, is a necessary element in
every contract, frequently the promise is coupled with
other elements such as physical acts, recitals of fact, and
the immediate transfer of property interests. In ordinary
usage the contract is not the promise alone, but the entire
complex of these elements." John D. Calamari &Joseph M.
Perillo, The Law ofContracts  1.1, at 1-2 (4th ed. 1998).
4. Broadly, any legal duty or set of duties not imposed
by the law of tort; esp., a duty created by a decree or
declaration of a court <an obligation of record, as a
judgment, recognizance, or the like, is included within
the term "contract">. [Cases: Contracts 1.] 5. The
body of law dealing with agreements and exchange
<the general theory of contract>. 6. The terms of an
agreement, or any particular term <there was no
express contract about when the money was payable>.
7. Loosely, a sale or conveyance.
"Sometimes the word 'contract' is used to deSignate a
transaction involving the exchange of goods or land for
money. When money is exchanged for goods, this consti
tutes a sale. When money is exchanged for land, this con
stitutes a conveyance. Sales and conveyances may be the
result of a previous contract but they are not the contracts
in themselves. There is no undertaking or commitment
to do or refrain from doing anything in the future. This
indispensable element of contract is missing." John Edward
Murray Jr., Mumwon Contracts  2, at 5 (2d ed. 1974).
8. Loosely, an enforceable agreement between two
or more parties to do or not to do a thing or set of
things; a compact <when they finally agreed, they had
a contract>. [Cases: Contracts C~)1.] -contract, vb.
contractual, adj.
absolute simulated contract. Civil law. A simulated
contract that the parties intend to be wholly ineffec
tive. La. Civ. Code art. 2026. See simulated contract.
[Cases: Fraudulent Conveyances 24(1).]
accessory contract. A contract entered into primarily
for the purpose of carrying OLlt a principal contract.
The principal types are suretyship, indemnity, pledge,
warranty, and ratification. Cf. principal contract. adhesion contract. (1949) A standard-form contract
prepared by one party, to be Signed by another party
in a weaker position, LlSU. a consumer, who adheres
to the contract with little choice about the terms.
Also termed contract ofadhesion; adhesive contract;
adhesory contract; adhesionary contract; take-it-or
leave-it contract; leonine contract. [Cases: Contracts
"Some sets of trade and professional forms are extremely
one-sided, grossly favoring one interest group against
others, and are commonly referred to as contracts of
adheSion. From weakness in bargaining pOSition, igno'
rance, or indifference, unfavored parties are willing to
enter transactions controlled by these lopsided legal docu
ments." Quintin Johnstone & Dan Hopson Jr., Lawyers and
Their Work 329-30 (1967).
"Dangers are Inherent in standardization ... for it affords
a means by which one party may impose terms on another
unwitting or even unwilling party. Several circumstances
facilitate this impOSition. First, the party that proffers the
form has had the advantage of time and expert advice in
preparing it, almost inevitably producing a form slanted in
its favor. Second, the other party is usually completely or
at least relatively unfamiliar with the form and has scant
opportunity to read it an opportunity often diminished
by the use of fine print and convoluted clauses. Third, bar
gaining over terms of the form may not be between equals
or, as is more often the case, there may be no possibility of
bargaining at all. The form may be used by an enterprise
with such disproportionately strong economic power that
it simply dictates the terms. Or the form may be a takeit
orleave-it proposition, often called a contract of adhesion,
under which the only alternative to complete adherence is
outright rejection." E. Allan Farnsworth, Contracts  4.26,
at 296-97 (3d ed. 1999).
aleatory contract (ay-Iee-d-tor-ee). [fro Latin aleator
"gambler," fro alea "the throwing of dice"] (1891) A
contract in which at least one party's performance
depends on some uncertain event that is beyond the
control of the parties involved . Most insurance
contracts and life annuities are of this type. -Also
termed hazardous contract; wagering contract. Cf.
certain contract. [Cases: Contracts (''=,218; Insur
ance (;:-:;; 1713.]
"A contract is aleatory when, because of the nature or
according to the parties' intent, the performance of either
party's obligation, or the extent of the performance,
depends on an uncertain event." La. Civ. Code art. 1912.
alternative contract. (1871) A contract in which the
performing party may elect to perform one of two
or more specified acts to satisfy the obligation; a
contract that provides more than one way for a party
to complete performance, usu. permitting that party
to choose the manner of performance. -Also termed
alternative-methods-of-performance contract. [Cases:
Contracts
assessment contract. A contract in which the payment
of a benefit is dependent on the collection of an assess
ment levied on persons holding similar


assessment contract. A contract in which the payment
of a benefit is dependent on the collection of an assess
ment levied on persons holding similar contracts.
See assessment insurance under INSURANCE. [Cases:
Insurance ~2080.]
best-efforts contract. A contract in which a party
undertakes to use best efforts to fulfill the promises
made rather than to achieve a specific result; a

:67 contract
contract in which the adequacy of a party's perfor
mance is measured by the party's ability to fulfill the
specified obligations . Although the obligor must
use best efforts, the risk of failure lies with the obligee.
To be enforceable, a best-efforts term must generally
set some kind ofgoal or guideline against which the
efforts may be measured. See BEST EFFORTS. [Cases:
Contracts (;:::::c 189.]
bilateral contract. (1866) A contract in which each
party promises a performance, so that each party is
an obligor on that party's own promise and an obligee
on the other's promise; a contract in which the parties
obligate t)1emselves reciprocally, so that the obliga
tion of one party is correlative to the obligation of
the other. Also termed mutual contract; recipro
cal contract; (in civil law) synallagmatic contract. See
COUNTERPROMISE. [Cases: Contracts 1,10(1).]
"In a bilateral contract a promise, or set of promises on one
side, is exchanged for a promise or a set of promises on
the other side. In a unilateral contract, on the other hand,
a promise on one side is exchanged for an act (or a for
bearance) on the other side. Typical examples of bilateral
contracts are contracts of sale, the buyer promising to pay
the price and the seller promising to deliver the goods. A
typical example of a unilateral contract is a promise of a
reward for the finding of lost property followed by the
actual finding of the property." P.s. Atiyah, An Introduction
to the Law of Contract 32 (3d ed. 1981).
blanket contract. A contract covering a group of
products, goods, or services for a fixed period.
bona fide contract (boh-n<} f Id or fI-dee). A contract
in which equity may intervene to correct inequali
ties and to adjust matters according to the parties'
intentions.
build-to-print contract. A contract requiring the con
tractor to build a product according to exact technical
specifications proVided by the customer . The design
specifications are explicit and are often coupled with
performance specifications, so the contractor has little
discretion in how to perform. Much governmental
contracting is build-to-print. -Also termed design
specification contract. Cf. performance contract (1).
certain contract. (l7c) A contract that will be performed
in a stipulated manner. Cf. aleatory contract.
collateral contract. (l809)A side agreement that
relates to a contract, which, if unintegrated, can be
supplemented by evidence of the side agreement; an
agreement made before or at the same time as, but
separately from, another contract. See COLLATERAL
CONTRACT DOCTRINE. [Cases: Evidence C:)440.]
"The term 'collateral contract' has no very precise meaning
in the law. It is generally used as a label for a contract
which is collateral, or by the side of, another contract. A
great many examples of implied or constructive contracts
created by the Courts are collateral in a broad sense ....
[Allthough the normal presumption is that the parties
intend a written contract to be exclusive evidence of their
intentions, it is always open to a party to show that in fact
the writing did not exclusively represent their intentions,
because of a 'collateral' contract made during the negotia
tions but not incorporated in the written instrument." P.S.
Atiyah. An Introduction to the Law of Contract 80-81, 161
(3d ed. 1981). commutative contract (ka-myoo-ta-tiv or kom-y<}-tay
tiv). 1. Civil law. A contract in which, at the time it is
formed, the parties' obligations and advantages are
certain and determinate . This definition applied
in Louisiana law before the civil code was revised
in 1984. 2. Louisiana law. A contract in which one
party's performance is correlative to the performance
ofthe other, so that nonperformance by either affords
a defense to the other. La. eiv. Code art. 1911. Cf.
independent contract; synallagmatic contract.
conditional contract. An agreement that is enforceable
only ifanother agreement is performed or ifanother
particular prerequisite or condition is satisfied.
Also termed hypothetical contract. [Cases: Contracts
(;:::::c218.]
conditional sales contract. See retail installment con
tract.
consensual contract. Hist. A contract arising from the
mere consensus of the parties, without any formal
or symbolic acts performed to fix the obligation .
Although the consensual contract was known to the
common law, it originated in Roman law, where it
embraced four types ofcontracts in which informal
consent alone was sufficient: (1) an agency agreement
(mandatum), (2) a partnership agreement (societas),
(3) a sale (emptio venditio), or (4) a letting or hiring
(locatio conductio). Cf. real contract.
"[Tlhe peculiarity of these Consensual Contracts is that
no formalities are required to create them out of the Pact.
Much that is indefensible, and much more that is obscure,
has been written about the Consensual Contracts, and it
has even been asserted that in them the consent of the
Parties is more emphatically given than in any other species
of agreement. But the Consensual merely indicates that the
Obligation is here annexed at once to the ConsenslJs. The
Consensus, or mutual assent of the parties, is the final and
crowning ingredient in the Convention, and it is the
characteristic of agreements falling under one four
heads of Sale, Partnership, Agency, and Hiring. that, as
soon as the assent of the parties has supplied this ingredi
ent, there is at once a Contract. The Consensus draws with
it the Obligation, performing, in transactions of the sort
specified, the exact functions which are discharged, in the
other contracts, by the Res or Thing ... ."' Henry S. Maine,
Ancient Law 322-23 (10th ed. 1884).
construction contract. A contract setting forth the
specifications for a building project's construction.
 This type of contract is usu. secured by performance
and payment bonds to protect both the owner and the
subcontractors. [Cases: Contracts
constructive contract. See implied-in-law contract.
continuing contract. A contract calling for periodic
performances. [Cases: Contracts (;:::::c216.]
contract for deed. (l825) A conditional sales contract
for the sale of real property. -Also termed install
ment land contract; land sales contract; land contract.
[Cases: Vendor and Purchaser (;:::::c'54.]
contract for sale. (1808) 1. A contract for the present
transfer of property for a price. Also termed
contract ofsale. [Cases: Sales C--'--:J 1(1).] 2. A contract

to sell goods at a future time. Also termed (in sense
2) contract to sell.
contract implied in fact. See implied-In-fact contract.
contract implied in law. See implied-in-law contract.
contract ofadhesion. See adhesion contract.
contract of affreightment. See CONTRACT OF
AFFREIGHTMENT.
contract ofbeneficence. See gratuitous contract.
contract ofbenevolence. See gratuitous contract.
contract ofcarriage. See CONTRACT OF AFFREIGHT
MENT ..
contract ofindemnity. See indemnity contract.
contract ofinsurance. See INSURANCE POLICY.
contract ofmarriage. See marriage contract.
contract of record. A contract that is declared by a
court and entered into the court's record. _ Contracts
of record include judgments, recognizances, and (in
England) statutes staple.
"Contracts of record are not really contracts at all, but are
transactions which, being entered on the records of certain
courts called 'courts of record,' are conclusive proof of the
facts thereby appearing, and could formerly be enforced
by action of law as if they had been put in the shape of a
contract." 1 Stewart Rapalje & Robert L Lawrence, A Dic
tionarv ofAmerican and English Law 282 (1883).
"A contract of record is in point of fact no contract at all,
and has nothing whatever to do with the law of contracts.
These socalled contracts are the obligations incurred by a
judgment or recognizance of a Court of Record. They came
to be called contracts only because they were enforceable
by the same type of action as was used for genuinely con
tractual cases in the old common law system of proce
dure." P.S. Atiyah, An Introduction to the Law of Contract
31 (3d ed. 1981).
contract ofsale. See contract for sale (1).
contract to pledge. 1. An agreement purporting to
create a present pledge without a bailment. [Cases:
Pledges G-'-:: 11.] 2. An agreement to make a future
bailment for the purpose of security. See PLEDGE
(3).
contract to satisfaction. See satisfaction contract.
contract to sell. See contract for sale (2).
contract uberrimae fidei (yoo-ber-d-mee fI-dee-I). A
contract in which the parties owe each other duties
with the utmost good faith. [Cases: Insurance
1867, 2996.1
"In a certain restricted group of contracts good faith is
peculiarly necessary owing to the relationship between
the parties, and in these cases -known as contracts uber
rimae fidei .-there is a full duty to disclose all material
facts. The typical instance of such contracts is the contract
of insurance. Here the duty to disclose all material facts to
the insurer arises from the fact that many of the relevant
circumstances are within the exclusive knowledge of one
party, and it would be impossible for the insurer to obtain
the facts necessary for him to make a proper calculation
of the risk he is asked to assume without this knowledge."
P.S. Atiyah, An Introduction to the Law ofContract 221-22
(3d ed. 1981). contract under seal. A formal contract that requires no
consideration and has the seal ofthe signer attached.
- A contract under seal must be in writing or printed
on paper or parchment and is conclusive between the
parties when signed, sealed, and delivered. Delivery is
made either by actually handing it to the other party
(or party's representative) or by stating an intention
that the deed be operative even though it is retained
in the possession of the party executing it. Modern
statutes have mostly eliminated the special effects
of a sealed contract. -Also termed sealed contract;
special contract; deed; covenant; specialty; specialty
contract; common-law specialty. See SEAL. Cf. sealed
instrument under INSTRUMENT (3). [Cases: Contracts
G-~48.1
"The only formal contract of English law is the contract
under seal, sometimes also called a deed and sometimes
a specialty. It is the only formal contract, because it derives
its validity neither from the fact of agreement, nor from
the consideration which may exist for the promise of either
party, but from the form in which it is expressed." William
R. Anson, Principles of the Law of Contract 82 (Arthur L.
Corbin ed., 3d Am. ed. 1919).
"Contracts under seal also bear little resemblance to
ordinary contracts, although here at least the liability is
based on a promise. A contract under seal, that is to say
a deed, ... is a written promise or set of promises which
derives its validity from the form, and the form alone, of
the executing instrument. In point of fact the 'form' of the
deed is nowadays surprisingly elastic. The only necessities
are that the deed should be intended as such, and should
be signed, sealed, and delivered. The sealing, however,
has now become largely a fiction, an adheSive wafer simply
being attached to the document in place of a genuine seal.
Similarly, 'delivery' is not literally necessary, provided that
there is a clear intention that the deed should be opera
tive." P.S. Atiyah, An Introduction to the Law of Contract
31 (3d ed. 1981).
cost-plus contract. (1920) A contract in which payment
is based on a fixed fee or a percentage added to the
actual cost incurred. [Cases: Contracts
de facto contract ofsale. A contract that purports to
pass property but is defective in some element.
dependent contract. A contract conditioned or depen
dent on another contract.
deposit contract. An agreement between a financial
institution and its customer governing the treat
ment ofdeposited funds and the payment of checks
and other demands against the customer's account.
[Cases: Banks and Banking C=>133,
design-specification contract. See build-to-print
contract.
destination contract. (1958) A contract in which a
seller bears the risk afloss until the goods arrive at
the destination. UCC  2-509. Cf. shipment contract.
[Cases: Sales (:::::::201(4).]
discharged contract. See void contract (2).
divisible contract. See severable contract.
dual contract. A contract between parties who have
made two contracts far the same transaction, some
times so that one may be used to defraud a person or

369 contract
entity (such as a lender) as to the terms ofthe parties'
actual agreement.
employment contract. (1927) A contract between an
employer and employee in which the terms and con
ditions of employment are stated. [Cases: Labor and
Employment C:::)31.j
engineering, procurement, and construction contract.
A fixed-price, schedule-intensive construction
contract typical in the construction of single
purpose projects, such as energy plants in which


A fixed-price, schedule-intensive construction
contract typical in the construction of single
purpose projects, such as energy plants in which
the contractor agrees to a wide variety ofresponsibili
ties, including the duties to provide for the design,
engineering, procurement, and construction ofthe
facility; to prepare start-up procedures; to conduct
performance tests; to create operating manuals; and
to train people to operate the facility. Abbr. EPC
contract. Also termed turnkey contract. See SIN
GLE-PURPOSE PROJECT.
entire-output contract. See output contract.
escrow contract. The contract among buyer, seller, and
escrow holder, setting forth the rights and respon
sibilities of each. See ESCROW. [Cases: Deposits and
Escrows 15.]
evergreen contract. A contract that renews itself from
one term to the next in the absence of contrary notice
by one of the parties.
exclusive contract. See EXCLUSIVE-DEALING ARRANGE
MENT.
executed contract. (18c) I. A contract that has been
fully performed by both parties. 2. A Signed contract.
[Cases: Contracts (:::::>6; Sales 197; Vendor and
Purchaser
executory contract (eg-zek-p-tor-ee). (18c) 1. A
contract that remains wholly unperformed or for
which there remains something still to be done on
both sides, often as a component of a larger trans
action and sometimes memorialized by an informal
letter agreement, by a memorandum, or by oral agree
ment. [Cases: Contracts Sales (:::::> 197; Vendor
and Purchaser (:::::>53.]
"If a contract is wholly executory, and the legal duties of
the parties are as yet unfulfilled, it can be discharged by
mutual consent, the acquittance of each from the other's
claims being the consideration for the promise of each to
waive his own." William R. Anson, Principles of the Law of
Contract 138 (Arthur L Corbin ed., 3d Am. ed. 1919).
2. Bankruptcy. A contract under which debtor and
nondebtor each have unperformed obligations and
the debtor, if it ceased further performance, would
have no right to the other party's continued perfor
mance. [Cases: Bankruptcy (:::::>3106.]
express contract. (I7c) A contract whose terms the
parties have explicitly set out. Also termed special
contract. Cf. implied contract. Contracts (:::::>
financial contract. Securities. An arrangement that
(1) takes the form of an individually negotiated
contract, agreement, or option to buy, sell, lend, swap, or repurchase, or other similar individually negoti
ated transaction commonly entered into by partici
pants in the financial markets; (2) involves securities,
commodities, currencies, interest or other rates, other
measures of value, or any other financial or economic
interest similar in purpose or function; and (3) is
entered into in response to a request from a coun
terparty for a quotation, or is otherwise entered into
and structured to accommodate the objectives ofthe
counterparty to such an arrangement ..
fixed-price contract. A contract in which the buyer
agrees to pay the seller a definite and predetermined
price regardless of increases in the seller's cost or the
buyer's ability to acqUire the same in the market
at a lower price. [Cases: Sales
formal contract. A contract made through the obser
vance of certain prescribed formalities . Among
the formal contracts are the contract under seal, the
recognizance, the negotiable instrument, and the
letter of credit. Cf. informal contract; formal agree
ment under AGREEMENT. [Cases: Contracts (:::::>30.]
forward contract. An agreement to buy or sell a par
ticular nonstandardized asset (usu. currencies) at
a fixed price on a future date. Unlike a futures
contract, a forward contract is not traded on a formal
exchange. Also termed forward agreement. Cf.
FUTURES CONTRACT. [Cases: Commodity Futures
Trading Regulation (:::::> 10.]
futures contract. See FUTURES CONTRACT.
gambling contract. An agreement to engage in a gamble;
a contract in which two parties wager something, esp.
money, for a chance to win a prize . Where gambling
is legal, contracts related to legal gambling activities
are enforceable. -Also termed gaming contract. See
wagering contract. [Cases: Gaming (;=:'10,25.]
"Generally, under or apart from statutes so providing,
or prohibiting such contracts or transactions, gambling
contracts and transactions are illegal and void and cannot
be enforced: and such contracts are void ab initio.... A
gambling contract is invalid, no matter what outward form
it may assume, and no ingenuity can make it legal." 38
C,J.S. Gaming  26, at 138-39 (1996).
government contract. A contract to which a govern
ment or government agency is a party, esp. for the
purchase of goods and services. See procurement
contract.
gratuitous contract (gr<l-t[y]oo-i-t<ls). 1. A contract
made for the benefit of a promisee who does not
give consideration to the promisor. Also termed
contract of beneficence; contract ofbenevolence. Cf.
onerous contract. 2. Civil law. A contract in which
one party promises to give a benefit to the other party
without expecting or gaining any benefit in return.
Also termed voluntary contract.
grubstake contract. A contract between two parties
in which one party provides the grubstake -money
and supplies -and the other party prospects for
and locates minerals on public land . Each party
acquires an interest in the minerals as agreed to in the

contract. Grubstake contracts are used chieflv in the
western United States. In some states, such as Alaska,
a request for grubstake money is considered the offer
of a security and must be registered. Also termed
grubstaking contract. [Cases: Mines and Minerals C-=
1Ol.]
guaranteed-sale contract. A contract between a real
estate agency and a property owner in which the
agency agrees to buy the property at a guaranteed
price after a specified length of time if it has not been
sold under the listing agreement.  The guaranteed
price is usu. a substantial discount from the listed
price. -;-Also termed guaranteed-purchase contract.
guaranty contract. See GCARANTY (1).
hazardous contract. See aleatory contract.
hypothetical contract. See conditional contract.
illegal contract. (18c) A promise that is prohibited
because the performance, formation, or object ofthe
agreement is against the law . Technically speaking,
an illegal contract is not a contract at all because it
cannot be enforced, so the phrase is a misnomer. Cf.
unenforceable contract; void contract. [Cases: Con
tracts C=J 103.]
"An illegal contract is exceptionally difficult to define. It
does not merely mean a contract contrary to the criminal
law, although such a contract would indubitably be illegal.
But a contract can well be illegal without contravening the
criminal law, because there are certain activities which the
law does not actually prohibit, but at the same time regards
as contrary to the public interest and definitely to be dis
couraged, for instance, prostitution. While a void contract
is not necessarily illegal, an illegal contract is often void.
However, the consequences of an illegal contract differ
somewhat from those usually produced by a simply void
contract, so illegal contracts are usually accorded separate
treatment." P.S. Atiyah, An Intwduction to the Law of
Contract 38 (3d ed. 1981).
illusory contract. (I8c) An agreement in which one
party gives as consideration a promise that is so
insubstantial as to impose no obligation . The insub
stantial promise renders the agreement unenforce
able. [Cases: Contracts ~10.1
immoral contract. An agreement that so flagrantly
violates societal norms as to be unenforceable. [Cases:
Contracts C='112.]
implied contract. (17c) 1. An implied-in-Iaw contract.
[Cases: Implied and Constructive Contracts 1.]
2. An implied-in-fact contract. Cf. express contract.
[Cases: Contracts~27.1
implied-in-fact contract. A contract that the parties
presumably intended as their tacit understanding,
as inferred from their conduct and other circum
stances. -Also termed contract implied in fact.
[Cases: Contracts
implied-in-law contract. An obligation created by law
for the sake ofjustice; specif., an obligation imposed
by law because of some special relationship between
the parties or because one of them would otherwise
be unjustly enriched . An implied-in-Iaw contract
is not actually a contract, but instead is a remedy that allows the plaintiff to recover a benefit conferred on
the defendant. -Also termed contract implied in
law; quasi-contract; constructive contract. See UNJUST
ENRICHMENT. [Cases: Implied and Constructive Con
tracts~l.]
"[Aldventurous courts have turned to the idea of a 'contract
implied in law,' a 'quaSi-contract' not really a contract,
a legal fiction necessary to promote the ends of justice
and, in particular, to prevent 'unjust enrichment,''' Grant
Gilmore, The Death ofContract 73-74 (1974).
"Since. , . claims for the redress of unjust enrichment did
not fit comfortably into either the category of contract
or that of tort, they came to be described as claims in
quasicontract. Some of them were originally characterized
as being in quantum meruit (as much as he deserved), a
form of action used for claims to payment for services.
This procedural term has persisted and is sometimes used
inexactly as a synonym for the more general term quasi
contract, which refers to any money claim for the redress of
unjust enrichment," E, Allan Farnsworth, Contracts  2,20,
at 103 (2d ed. 1990),
impossible contract. An agreement that the law will
not enforce because there is no feasible way for one of
the parties to perform. See IMPOSSIBILITY (3). [Cases:
Contracts ~309.]
indemnity contract. A contract by which the promisor
agrees to reimburse a promisee for some loss irre
spective of a third person's liability. Also termed
contract ofindemnity. [Cases: Indemnity C-=-25.J
independent contract. A contract in which the mutual
acts or promises ofthe parties have no relation to each
other, either as equivalents or as considerations. Cf.
commutative contract.
informal contract. 1. A contract other than one under
seal, a recognizance, or a negotiable instrument;
specif., that derives its force not from the observance
of formalities but because ofthe presence in the trans
action ofcertain elements that are usu. present when
people make promises with binding intent -namely
mutual assent and consideration (or a device other
than consideration) . An informal contract may
be made with or without a writing. Most modern
contracts are informaL -Also termed bargain;
simple contract. [Cases: Contracts ~L] 2. See parol
contract.
"In general, there are five essential elements to the forma
tion of an informal contract. These are: (1) mutual assent;
(2) consideration or some other validation device; (3) two
or more contracting parties (no person may contract with
hi mself); (4) parties having legal capacity to contract; (5)
the absence of any statute or common-law rule declaring
the particular transaction to be void. The fourth and fifth
elements are essential to the creation of any contract,
formal or informal. The first, second and third elements
are essential to the formation of informal contracts." John
Edward Murray Jr., Murray on Contracts  17, at 28 (2d
ed. 1974).
innominate contract (i-nom-a-nit). Roman & civil
law. A contract not classifiable under any particular
name; a contract for which the law supplies nothing
in addition to the express agreement of the parties.
La. Civ. Code art. 1914. This type of contract was
developed late in classical Roman law. Although the

371
agreements were reciprocal, they did not become
operational without at least part performance.
Also termed innominate real contract. Cf. nominate
contract.
installment contract. (1896) A contract requiring or
authorizing the delivery ofgoods in separate lots, or
payments in separate increments, to be separately
accepted. -Under the UCC, this type of agreement
will be considered one contract even ifit has a clause
stating that each delivery is a separate contract. UCC
 2-612. [Cases: Sales (;:::; 163, 192.]
installment land contract. See contract for deed.
integrated contract. See INTEGRATED CONTRACT.
invalid contract. An agreement that is either void or
voidable. -Also termed invalid agreement. [Cases:
Contracts (;:::;98.]
investment contract. See INVESTMENT CONTRACT.
joint contract. A contract in which two or more promi
sors are together bound to fulfill its obligations, or one
in which two or more promisees are together entitled
to performance. Cf. severable contract. [Cases: Con
tracts (;:::; IS1.]
land contract. See contract for deed.
land sales contract. See contract for deed.
leonine contract. See adhesion contract.
letter contract. In federal contract law, a written
contract with sufficient provisions to permit the con
tractor to begin performance. [Cases: Contracts
26.]
leverage contract. See LEVERAGE CONTRACT.
literal contract. 1. Roman law. A type of written
contract originally created by and later evidenced
by -an entry of the sum due on the debit side of a
ledger, binding a signatory even though the signatory
receives no consideration. -Literal contracts were
often used for novations. See LITTERIS OBLIGATIO.
'Though an obligation could be created by a literal contract
in the time of Gaius, the so-called literal contract ofJustin
ian was not, in itself, a means of creating an obligation, but


Gaius, the so-called literal contract ofJustin
ian was not, in itself, a means of creating an obligation, but
was the evidence of an obligation created in some other
way .... The true literal contract, as described by Gaiu5,
may be defined as a means of creating an obligation to pay
money by a fictitious entry ... in the creditor's account
book ... with the consent of the intended debtor. A, with
8's consent, enters the fact that B is indebted to him ...
and thereupon B is under an obligation to pay, though
no money has passed between them." R.W. Leage, Roman
Private Law316-17 (C.H. Ziegler ed., 2d ed. 1930).
2. Civil law. A contract fully evidenced by a writing
and binding on the signatory.
marine contract. See maritime contract.
maritime contract. A contract that is recognized in
admiralty jurisdiction . In general, a maritime
contract relates to a vessel in its use as such, to navi
gation on navigable waters, to transportation by sea,
or to maritime employment. Also termed marine
contract. contract
marketing contract. 1. A business's agreement with an
agency or other association for the promotion ofsales
of the business's goods or services. 2. An agreement
between a cooperative and its members, by which the
members agree to sell through the cooperative, and
the cooperative agrees to obtain an agreed price.
marriage contract. A form ofmutual consent required
for a matrimonial relationship to exist according to
the law ofthe place where the consent takes place.
Also termed contract of marriage. [Cases: Marriage
Cr'-::> 1, lS-20(2).]
mixed contract. 1. Civil law. A contract in which
the respective benefits conferred are unequal. 2. A
contract for both the sale of goods and services .
The UCC may apply to a mixed contract if the pre
dominant purpose is for the sale of goods. [Cases:
Sales
mutual contract. See bilateral contract.
naked contract. See NUDUM PACTUM.
nominate contract (nom-;l-nit). Civil law. A contract
distingUished by a particular name, such as sale,
insurance, or lease, the very use ofwhich determines
some of the rules governing the contract and the con
tractual rights of the parties, without the need for
special stipulations. -The contracts are generally
divided into four types: (1) real (arising from some
thing done), (2) oral (arising from something said),
(3) literal (arising from something written), and (4)
consensual (arising from something agreed to). La.
Civ. Code art. 1914. Cf. innominate contract.
nude contract. See NUDDM PACTUM.
onerous contract. Civil law. A contract in which each
party is obligated to perform in exchange for each
party's promise of performance. La. Civ. Code art.
1909. Cf. gratuitous contract.
option contract. See OPTION (2).
oral contract. See parol contract (1).
output contract. (1904) A contract in which a seller
promises to supply and a buyer to buy all the goods
or services that a seller produces during a speci
fied period and at a set price . Ihe quantity term is
measured by the seller's output. An output contract
assures the seller of a market or outlet for the period
ofthe contract. -Also termed entire-output contract.
Cf. requirements contract. [Cases: Sales (~=)71(4).]
parol contract (p;l-rohl or par-;ll). (lSc) 1. A contract
or modification of a contract that is not in writing
or is only partially in writing. Also termed oral
contract; parol agreement; (loosely) verbal contract.
[Cases: Contracts (;::::;:,31, 238(2).] 2. At common
law, a contract not under seal, although it could be
in writing. Also termed informal contract; simple
contract. See PAROL-EVIDENCE RULE.
pay-or-play contract. A contract in which one party
agrees to perform and the other agrees to pay for the
promised performance even if performance is never

372 contract
demanded. Pay-or-play contracts are usu. made in
the entertainment industry.
performance contract. 1. A contract that requires a
party to act personally and does not allow substitu
tion. People who provide unique personal services
often make performance contracts. 2. A contract that
allows the contractor to choose the means to achieve
the end result.  The product's specifications may be
loose and allow the contractor latitude in deciding
how to perform. Cf. build-to-print contract.
personal contract. 1. A contract that binds a person
but not that person's heirs or assignees because the
contract requires a personal performance for which
there is no adequate substitute. [Cases: Assignments
~19.J 2. A contract that binds a representative as an
individual rather than binding the person or entity
represented . For instance, contracts made by a dece
dent's personal representative traditionally bind the
representative, not the estate, unless expressly agreed
otherwise. [Cases: Executors and Administrators
95.3. A real-property-related contract that is treated
as personal property, not as a substitute for the real
property. Examples include oil-and-gas royalty con
tracts and property-insurance policies.
pignorative contract (pig-nd-ray-tiv). Civil law. A
contract in which the seller of real property, instead
of relinquishing possession of the property that is
theoretically sold, gives the buyer a lien; a contract of
pledge, hypothecation, or mortgage ofrealty. [Cases:
Mortgages ~3l.l
precontract. (ISc) A contract that precludes a party
from entering into a comparable agreement with
someone else . Historically, a precontract was usu.
a promise to marry. It formed an impediment to
marriage with any person other than the promisee.
The legal impediment was extinguished and revived
several times until it was finally abolished in 1752 by
26 Geo. 2, ch. 33,  13. Cf. LETTER OF INTENT. [Cases:
Contracts
principal contract. A contract giving rise to an acces
sory contract, as an agreement from which a secured
obligation originates. Cf. accessory contract.
private contract. An agreement between private parties
affecting only private rights.
procurement contract. A contract in which a govern
ment receives goods or services. A procurement
contract, including the bidding process, is usu. subject
to government regulation. Also termed government
contract. See FEDERAL ACQUISITION REGULATION.
[Cases: Public Contracts ~5.]
public contract. A contract that, although it involves
public funds, may be performed by private persons
and may benefit them. [Cases: Public Contracts
1.]
quasi-contract. See implied-in-law contract.
real contract. Hist. A contract in which money or other
property passes from one party to another; a contract requiring something more than mere consent, such
as the lending ofmoney or handing over ofa thing .
This term, derived from Roman law, referred to con
tracts concerning both personal and real property.
Real contracts included transactions in the form of
commodatum, depositum, mutuum, and pignus. Cf.
consensual contract.
"The essence of ... the real contracts, was that, at the time
the agreement was made, one party, by delivering some
thing belonging to him to the other party to the contract,
imposed on that other an obligation to return the thing
itself or, in the case of things intended to be consumed,
an equivalent in kind. As the Roman lawyers expressed it,
the contractual obligation was created by something being
handed over ...." R.W. Leage, Roman Private Law292 (C.H.
Ziegler ed., 2d ed. 1930).
"The term 'real contract' is in common use in the Civil law,
and though not commonly used by judges or writers in the
common law, nevertheless describes certain obligations
enforced in England from very early times. A real contract
is an obligation arising from the possession or transfer of
a res." Samuel Williston, A Treatise on the Law ofContracts
 8. at 19 (Walter H.E.Jaeger ed., 3d ed. 1957).
reciprocal contract. See bilateral contract.
referral sales contract. See REFERRAL SALES CON
TRACT.
relative simulated contract. Civil law. A simulated
contract that the parties intend to have some effects,
but not necessarily those recited in the contract. La.
Civ. Code art. 2027. See simulated contract. [Cases:
Fraudulent Conveyances (>1,24(1).]
requirements contract. (1932) A contract in which a
buyer promises to buy and a seller to supply all the
goods or services that a buyer needs during a speci
fied period. The quantity term is measured by the
buyer's requirements. A requirements contract assures
the buyer ofa source for the period ofthe contract. Cf.
output contract. [Cases: Sales C-:07l(4).]
retail installment contract. A contract for the sale
of goods under which the buyer makes periodic
payments and the seller retains title to or a security
interest in the goods. Also termed retail install
ment contract and security agreement; conditional
sales contract. Cf. chattel mortgage under MORTGAGE.
[Cases: Consumer Credit C::'4.J
satisfaction contract. A contract by which one party
agrees to perform to the satisfaction of the other.
Also termed contract to satisfaction. [Cases: Contracts
sealed contract. See contract under seal.
self-determination contract. Under the Indian Self
Determination and Education Assistance Act, an
agreement under which the federal government
provides funds to an Indian tribe and allows the tribe
to plan and administer a program that would other
wise be administered by the federal government. 25
USCA  450bO). [Cases: Indians ~139.]
service contract. A contract to perform a service; esp., a
written agreement to provide maintenance or repairs

373 contract
on a consumer product for a specified term. [Cases: I favor the drafting party, they can amount to adhesion
Contracts 190; Sales (:::::3.1.]
severable contract. (1854) A contract that includes two
or more promises each of which can be enforced sepa
rately, so that failure to perform one of the promises
does not necessarily put the promisor in breach of
the entire contract. -Also termed divisible contract;
several contract. See SEVERABILITY CLAUSE. Cf. joint
contract. [Cases: Contracts Cr'-:;:) 137, 171.]
"A severable contract ... is one the consideration of which
is, by its terms, susceptible of apportionment on either
side, so as to correspond to the unascertained consider
ation on the other side, as a contract to pay a person the
worth ofhis services so long as he will do certain work: or
to give a certain price for every bushel of so much corn as
corresponds to a sample." Ivan Horniman, Wharton's Law
Lexicon 215 (13th ed. 1925).
shipment contract. (1S93) A contract in which a seller
bears the risk ofdamage to the items sold only until
they are brought to the place of shipment. -Ifa
contract for the sale of goods does not address the
terms of delivery, it is presumed to be a shipment
contract. UCC  2-319, 2-504, 2-509. Cf. destination
contract. [Cases: Sales (;::>201(4).]
"In the jargon of commercial lawyers, a contract that
requires or authorizes the seller to send the goods to
the buyer but does not require that he deliver them at
any particular destination is called a 'shipment contract.'
Generally, in shipment contracts, risk of loss passes to
the buyer at the point of shipment, which is also the
point of 'delivery,' while in 'destination contracts' (seller
must deliver at a particular destination) risk passes upon
seller's tender at destination." 1 James J. White & Robert
S. Summers, Uniform Commercial Code  3-5, at 128-29
(4th ed. 1995).
simple contract.!. See informal contract (1). 2. See
parol contract (2).
simulated contract. Civil law. A contract that, bv
mutual agreement, does not express the true inten't
of the parties. La. Civ. Code art. 2025. - A simulated
contract is absolute when the parties intend that the
contract will impose no obligations; no obligations
are enforceable on the parties by such a contract. A
simulated contract is relative ifthe parties intend it to
impose obligations different from those recited in the
contract; the intended obligations are enforceable if
all relevant conditions are met. A simulated contract
may affect the rights of third parties. See action en
declaration de simulation under ACTION (4). -Also
termed simulation. [Cases: Fraudulent Conveyances
(::::: 1, 24(1).]
special contract. 1. See contract under seal. 2. A
contract with peculiar provisions that are not ordi
narily found in contracts relating to the same subject
matter. 3. See express contract.
specialty contract. See contract under seal.
standard-form contract. (1923) A usu. preprinted
contract containing set clauses, used repeatedly by
a business or within a particular industry with only
slight additions or modifications to meet the specific
situation. -Because standard-form contracts usu. contracts. Courts offset the drafting party's advantage
by construing the contract in the light least favorable
to the drafting party. -Also termed standardized
contract. See adhesion contract. [Cases: Contracts
(:::::1.]
"[U]niformity of terms in contracts typically recurring in a
business enterprise is an important factor in the exact cal
culation of risks. Risks that are difficult to calculate can be
excluded altogether. Unforeseeable contingencies affect
ing performance, such as strikes, fire, and transportation
difficulties can be taken care of.... Standardized contracts
have thus become an important means of excluding or
controlling the ['irrational


ies can be taken care of.... Standardized contracts
have thus become an important means of excluding or
controlling the ['irrational factors' that could persuade
a court or jury to decide against a powerful defendant]."
Friedrich Kessler, Contracts ofAdhesion -Some Thoughts
About Freedom ofContract, 43 Colum. L. Rev. 629, 631-32
(1943).
statutory contract. A contract for which a statute pre
scribes certain terms. -Statutes often govern the
contracts made by public entities, but also some by
private persons. For example, a statute may define and
set minimum standards for terms in home-improve
ment contracts.
stock-option contract. A negotiable instrument that
gives the holder the right to buy or sell -for a
specified price within a fixed time limit a certain
number of shares of the corporation's stock. See
STOCK OPTION. [Cases: Corporations (::::: 116.]
subcontract. (lSc) A secondary contract made by a
party to the primary contract for carrying out the
primary contract, or a part ofit.
subscription contract. See SUBSCRIPTION (3).
substituted contract. A contract made between parties
to an earlier contract so that the new one takes the
place of and discharges the earlier one. - A substi
tuted contract differs from a novation (as "novation"
is traditionally defined) in that the latter requires
the substitution for the original obligor of a third
person not a party to the original agreement; when
the obligee accepts the third party, the agreement is
immediately discharged. In contrast to both substi
tuted contract and novation, an executory accord
does not immediately discharge an obligation; rather,
the obligation is discharged on performance, often by
a third person, rather than the original obligor. Cf.
NOVATION; ACCORD (2). [Cases: Accord and Satisfac
tion 1; ;-';ovation (~1, 4.]
"[AJ substituted contract immediately discharges the prior
claim which is merged into the new agreement. Conse
quently, in the absence of an express agreement to the
contrary, the original claim can no longer be enforced. In
the event of a breach, any action would have to be brought
on the substituted agreement. ... The concept of 'sub
stituted contract' was created largely to circumvent the
unsatisfactory rules that until recently governed executory
accords. Now that these rules have been modernized, the
next step should be the reabsorption of the substituted
contract into the executory accord .... [TJhe untidy distinc
tion between executory accords and substituted contracts
should not be allowed to complicate litigation about routine
claim settlements." John D. Calamari &Joseph M. Perillo,
The Law ofContracts  21.6, at 803 (4th ed. 1998).

contract 374
synallagmatic contract (sin-d-lag-mat-ik). [fro Greek
synallagma "mutual agreement"] Civil law. A contract
in which the parties obligate themselves reciprocally,
so that the obligation of each party is correlative to the
obligation ofthe other. La. Civ. Code arts. 1908, 1911.
- A synallagmatic contract is characterized by cor
relative obligations, whereas a commutative contract
is characterized by correlative performances. The
term synallagmatic contract is essentially the civil
law equivalent ofthe common law's bilateral contract.
Cf. commutative contract.
tacit contract. A contract in which conduct takes the
place of written or spoken words in the offer or accep
tance (or both). [Cases: Contracts ~27.]
take-it-or-Ieave-it contract. See adhesion contract.
take-or-pay contract. A contract requiring the buyer
to either purchase and receive a minimum amount of
a product ("take") or pay for this minimum without
taking immediate delivery ("pay"). -These contracts
are often used in the energy and oil-and-gas busi
nesses. [Cases: Electricity~11(3); GasC:'13(l).]
task-order contract. A contract under which a vendor
agrees to render services or deliver products as
ordered from time to time . Governments use this
type of contract when the quantities that will be
needed or the times for performance are uncertain.
The contract may describe the services or products
generally, but it must specify the period of perfor
mance, the number ofoption periods, and the total
minimum and maximum quantity of products or
services that the government will acquire under the
contract. When exercising its contractual rights, the
government issues task orders to specify the product
or service requirements, which may vary with each
order. Sometimes shortened to task order. [Cases:
United States
third-party-beneficiary contract. A contract that
directly benefits a third party and that gives the third
party a right to sue any ofthe original contracting
parties for breach. [Cases: Contracts (~187.]
turnkey contract. See engineering, procurement, and
construction contract.
unconscionable contract. See unconscionable agree
ment under AGREEMENT.
unenforceable contract. A valid contract that, because
ofsome technical defect, cannot be fully enforced; a
contract that has some legal consequences but that
may not be enforced in an action for damages or
specific performance in the face ofcertain defenses,
such as the statute of frauds. -Also termed agree
ment ofimperfect obligation. Cf. illegal contract; void
contract. [Cases: Contracts 138(1).]
"The difference between what is voidable and what is
unenforceable is mainly a difference between substance
and procedure. A contract may be good, but incapable
of proof owing to lapse of time, want of written form, or
failure to affix a revenue stamp. Writing in the first cases,
a stamp in the last, may satisfy the requirements of law
and render the contract enforceable, but it is never at any time in the power of either party to avoid the transaction.
The contract is unimpeachable, only it cannot be proved in
court." William R. Anson, Principles ofthe Law ofContract
19-20 (Arthur L. Corbin ed., 3d Am. ed. 1919).
"Courts are ... fond of condemning the unenforceable
agreement as 'illegal.' This is misleading insofar as it
suggests that some penalty is necessarily imposed on one
of the parties, apart from the court's refusal to enforce the
agreement. In some cases, the conduct that renders the
agreement unenforceable is also a crime, but this is not
necessarily or even usually so. It is therefore preferable
to attribute unenforceability to grounds of public policy
rather than to 'illegality.'" E. Allan Farnsworth, Contracts
 5.1, at 323 (3d ed. 1999).
unilateral contract. (1855) A contract in which only
one party makes a promise or undertakes a perfor
mance; a contract in which no promisor receives
a promise as consideration for the promise given.
[Cases: Contracts (;:=> 1.]
"[M]any unilateral contracts are in reality gratuitous
promises enforced for good reason with no element of
bargain." P.S. Atiyah, An Introduction to the Law ofContract
126 (3d ed. 1981).
"If A says to B. 'If you walk across the Brooklyn Bridge I will
pay you $100: A has made a promise but has not asked B
for a return promise. A has asked Bto perform, not a com
mitment to perform. A has thus made an offer looking to a
unilateral contract. Bcannot accept this offer by promising
to walk the bridge. B must accept, if at all, by performing
the act. Because no return promise is requested, at no
poi nt is B bound to perform. If Bdoes perform, a contract
involving two parties is created, but the contract is classi
fied as unilateral because only one party is ever under an
obligation." John D. Calamari &Joseph M. Perillo, The Law
ofContracts  210(a), at 64-65 (4th ed. 1998).
valid contract. A contract that is fully operative in
accordance with the parties' intent. Also termed
valid agreement. [Cases: Contracts
variable annuity contract. Securities. An annuity
whose payments vary according to how well the fund
(usu. made up ofcommon stocks) that backs it is per
forming. SEC Rule O-l(e)(l) (17 CFR  270.0-1(e)(1).
See variable annuity under ANNUITY. [Cases: Securi
ties Regulation ~5.30.]
verbal contract. See parol contract (1).
voidable contract. (18c) A contract that can be affirmed
or rejected at the option of one of the parties; a
contract that is void as to the wrongdoer but not void
as to the party wronged, unless that party elects to
treat it as void. [Cases: Contracts <>~98, 136.]
"A voidable contract is a contract which, in its inception,
is valid and capable of producing the results of a valid
contract, but which may be 'avoided', I.e. rendered void at
the option of one (or even, though rarely, of both) of the
parties." P.S. Atiyah, An Introduction to the Law ofContract
37-38 (3d ed. 1981).
void contract. (I7c) 1. A contract that is of no legal
effect, so that there is really no contract in existence
at alL - A contract may be void because it is techni
cally defective, contrary to public policy, or illegal.
Cf. illegal contract; unenforceable contract. [Cases:
Contracts ~98, 136.]
"Strictly speaking, a 'void contract' is a contradiction in
terms; for the words describe a state of things in which,

375
despite the intention of the parties, no contract has been
made, Yet the expression, however faulty, is a compendi
ous way of putting a case in which there has been the
outward semblance without the reality of contract," William
R, Anson, Principles of the Law of Contract 18 (Arthur L.
Corbin ed" 3d Am, ed, 1919),
"A valid contract is, of course, simply a contract of full
force and effect, not vitiated in any way. A so-called void
contract, on the other hand, is really a contradiction in
terms inasmuch as a contract has already been defined
in terms applicable only to a valid contract. However, the
term is convenient and is universally used, For purposes
of exposition, it is convenient to treat void contracts as
falling, broadly speaking, into main categories, On the one
hand, are cases where one of the normal requirements for
the crealion of a contract is absent, while, on the other
hand, are cases where all the normal requirements are
satisfied, but the contract is void because the law disap
proves of its purpose or the terms by which it seeks to
achieve that purpose. Typical examples of contracts which
are void because one of the normal requirements is absent
are contracts in which the acceptance of an offer has not
been communicated or in which a promise is given gra
tuitously. Typical examples of contracts which are void
because of their terms or objects are wagering contracts,
and contracts prejudicial to family relations." P.S_ Atiyah, An
Introduction to the Law ofContract 36-37 (3d ed. 1981).
2. A contract that has been fully performed. -Also
termed discharged contract.
"Not only is the term 'void contract' in itself technically
inaccurate, but a contract is sometimes said to be void,
not because it was destitute of legal effect from its com
mencement, but because it has been fully performed, and
so has ceased to have legal operation. It would be more
proper to describe such a contract as 'discharged.''' William
R. Anson, Principles of the Law of Contract 20 (Arthur l.
Corbin ed., 3d Am_ ed. 1919),
3. Loosely, a voidable contract.
"Again the word 'void' has been used, even by judges and
the framers of statutes, where 'voidable' is meant. One
illustration will suffice. By 17 Geo. III, c, SO, failure to pay
certain duties at an auction is stated to make a bidding 'nul
and void to all intents,' but this does not entitle a purchaser
who has repented of his bargain to avoid the contract by
his own wrong, that is by refusal to pay the statutory duty.
The contract is voidable at the option of the party who
has not broken the condition imposed by law_" William R.
Anson, Principles of the Law of Contract 20-21 (Arthur l.
Corbin ed" 3d Am, ed. 1919),
voluntary contract. See gratuitous contract (2).
wagering contract. 1. A contract the performance of
which depends on the happening of an uncertain
event, made entirely for sport. See gambling contract.
Cf. aleatory contract. [Cases: Gaming (;:J1,5, 10.]
"Although wagering and gaming agreements were gen
erally enforceable under the English common law, they
were condemned in most American states, in part because
they were thought to encourage shiftlessness, poverty, and
immorality, and in party because they were regarded as too
frivolous to be worthy ofjudicial attention, Irwin v. Williar,
110 U,S. 499 (1884) ('In England it is held that the contracts,
although wagers, were not void at common law, . ' . while
generally, in this country, all wagering contracts are held
to be illegal and void as against public policy:)" E. Allan
Farnsworth, Contracts  5,2 n.4, at 326-27 (3d ed, 1999).
2. A contract in which an uncertain event affects or
results from a business transaction . With this type Contracts Clause
ofwagering contract, a business person is protected
from a trade risk.
written contract. A contract whose terms have been
reduced to writing.
"Written contracts are also commonly signed, but a written
contract may consist of an exchange of correspondence,
of a letter written by the promisee and assented to by the
promisor without signature, or even of a memorandum
or printed document not signed by either party. Statutes
relating to written contracts are often expressly limited to
contracts signed by one or both parties. Whether such a
limitation is to be implied when not explicit depends on the


limited to
contracts signed by one or both parties. Whether such a
limitation is to be implied when not explicit depends on the
purpose and context." Restatement (Second) of Contracts
 95 cmt. c (1979) (citations omitted).
yellow-dog contract. See YELLOW-DOG CONTRACT.
contract, freedom of. See FREEDOM OF CONTRACT.
contract bond. See PERFORMANCE BOND.
contract carrier. See private carrier under CARRIER.
Contract Clause. See CONTRACTS CLAUSE.
contract demurrage. See DEMURRAGE.
contractee. Rare. A person with whom a contract is
made.
contract labor. See INDEPENDENT CONTRACTOR.
contract loan. See add-on loan under LOAN.
contract not to compete. See noncompetition covenant
under COVENANT (1).
contract not to sue. See covenant not to sue under
COVENANT (1).
contract ofaffreightment (a-frayt-mant). Maritime law.
An agreement for the carriage of goods by water . A
contract ofaffreightment may employ a bill oflading,
a charterparty, or both to ship the goods. -Abbr.
COA. Also termed contract ofcarriage. See CHAR
TERPARTY. [Cases: Shipping (;:J104.]
contractor. (16c) 1. A party to a contract. 2. More specif.,
one who contracts to do work or prOVide supplies for
another.
competent contractor. A contractor who has the knowl
edge, skill, experience, and available equipment to do
the work that he or she is employed to do without
creating an unreasonable risk ofinjury to others and
who has the personal characteristics necessary to
carry out the work. [Cases: Labor and Employment
<8::::/3132.]
general contractor. One who contracts for the com
pletion of an entire project, including purchasing
all materials, hiring and paying subcontractors, and
coordinating all the work. Also termed original
contractor; prime contractor. [Cases: Contracts (;:J,
197.]
independent contractor. See INDEPENDENT CONTRAC
TOR.
subcontractor. See SUBCONTRACTOR.
contract rate. See INTEREST RATE.
Contracts Clause. (1875) The clause of the U.S. Con
stitution prohibiting states from passing any law that

376 contract-specification defense
would impair private contractual obligations. The i enforced contracts of good faith (e.g., contracts of
Supreme Court has generally interpreted this clause
so that states can regulate private contractual obliga
tions if the regulation is reasonable and necessary to
serve an important public purpose. u.s. Const. art. I,
 10, d. 1. -Also termed Contract Clause; Obligation
ofCon tracts Clause. [Cases: Constitutional Law
2660-2775.)
contract-specification defense. An affirmative defense
that immunizes a contractor from liability for a defect
in a product when the contractor has manufactured or
performed according to detailed contractual orders .
The defense applies to specialized, single-use compo
nents ana protects a component supplier from claims of
negligent design if the component conforms to the con
tractual specifications unless the specifications are
obviously dangerous. Under modern notions of strict
liability, courts have increasingly rejected this defense.
Cf. GOVERNMENT-CONTRACTOR DEFENSE; GOVERN
MENT-AGENCY DEFENSE. [Cases: Products LiabilityC=;>
175,
contract system. Hist. The practice of leasing prisoners
out to private individuals for the prisoners' labor.
contract to pledge. See CONTRACT.
contract to satisfaction. See satisfaction contract under
CONTRACT.
contract to sell. See contract for sale (2) under
CONTRACT.
contractual duty. See DUTY (1).
contractual fault. See FAULT.
contractual indemnity. See INDEMNITY.
contractual obligation. See OBLIGATION.
contract uberrimae fidei. See CONTRACT.
contract under seal. See CONTRACT.
contractus (kan-trak-tds). [Latin] Roman law. A contract;
an agreement between two or more parties, usu. to
create an actionable bond between them. See CON
TRAHERE.
"The texts of the Roman law do not supply a definition
of contract. The words contractus contrahere like
'contract' in English, are used in various senses, some-
ti mes Wider, sometimes narrower. Labeo gives contractus
the meaning of a reciprocal obligation, such as purchase
and sale, hire, partnership. But when the Romans speak
of obligation arising from contract, they mean obligations
arising from convention or agreement. In Roman law it was
far from being the case that all agreements which might be
expected to produce a legal obligation did so." R.W. lee,
The Elements of Roman Law 285 (4th ed, 1956).
contractus bonae fidei, vel stricti juris (kdn-trak-tds
boh-nee I-dee-I, vel strik-tI joor-I). [Latin] Roman
law. Contracts ofgood faith or ofstrict law; a contract
requiring that the parties perform their duties in good
faith. In an action brought on a contractus bonae
fidei, the plaintiff had to assert that he had not acted
in bad faith. All consensual contracts were considered
contractus bonae fidei. The phrase was typically used
when a remedy was being sought for a breach. Judges sale) according to the requirements of good faith and
contracts ofstrict law (e.g., stipulations) according to
their strict terms. Sometimes shortened to contrac
tus bonae fidei.
contract zoning. See ZONING.
contradictio in adjecto. [Latin) A contradiction in terms;
an oxymoron.
contradictory judgment. See rUDGMENT.
contradictory motion. See MOTION (1).
contra executionem (kon-trd ek-si-kyoo-shee-oh-ndm).
[Law Latin] Hist. Against execution. The phrase
referred to the presumption in favor of a defendant's
objections to the manner of execution against the
defendant's property.
contrafactio (kon-trd-fak-shee-oh). [Law Latin] Hist. The
act ofcounterfeiting . The word appeared frequently
in the phrase contrafactio sigilli regis ("counterfeiting
the king's seal").
contra fidem tabularum nuptialium (kon-trd fI-d<lm
tab-p-Iair-dm ndp-shee-ay-lee-<lm). [Law Latin] Scots
law. Against the provisions of the marriage contract.
The phrase usu. referred to antenuptial contracts.
contra formam collationis (kon-tr<l for-m<lm kd-lay
shee-oh-nis). [Latin "against the form of a collation"]
Hist. A writ to regain lands given to a religious society
in exchange for perpetual alms. The writ was usu.
sought by an heir ofthe person who had given the land
away.
contra formam feoffmenti (kon-tr<l for-m<lm feef-men
tIl. [Latin "contrary to the form ofthe feoffment"] Hist.
A writ that commanded a landowner to stop demand
ing from a tenant more services than those included
in the tenant's deed to the land. Also spelled contra
formam feoffamenti.
"Contra formam feoffamenti is a writ that lies where a man
before the statute of quia emptores terra rum, made 18 Ed.
1, infeoffed another by deed to do certain service; if the
feoffor or his heirs distrain him to do other service than is
comprised in the deed, then the tenant shall have this writ,
commanding him not to distrain him to do other service
than is comprised in the deed." Termes de fa Ley 116 (1st
Am. ed, 1812).
contra formam statuti (kon-tr<l for-m<lm sta-tyoo-tI).
[Law Latin] Contrary to the form of the statute. See
AGAINST THE FORM OF THE STATUTE.
contrahere (kan-tray-hd-ree), vb. [Latin "draw together"]
Roman law. 1. To establish or enter into a formal rela
tionship, as between husband and wife, creditor and
debtor, by mutual agreement. 2. To commit a crime. 3.
To accept an inheritance. 4. Generally, to perform any
act oflegal Significance. See CONTRACTUS.
contra hereditatem jacentem (kon-tr<l hd-red-i-tay-tdm
ja-sen-tdm). [Law Latin] His!. Against a succession that
the heir has not taken up; against a fallen inheritance.
 The phrase appeared in reference to a creditor's right
to pursue a debtor's estate tor recovery of a debt even
though the heir did not take up the succession.

377
contra jus belli (kon-tra jas bel-I). [Latin] Against the
law ofwar.
contrajus commune (kon-tra jds ka-myoo-nee). [Latin]
Against common right or law; contrary to the rule of
the common law.
contra legem (kon-tra lee-jam ter-ee). [Latin]!. Contrary
to law; against the law. 2. EQUITY CONTRA LEGEM.
contra legem terrae (kon-tr.. lee-j ..m ter-ee). [Latin]
Against the law of the land.
contra libertatem matrimonii (kon-tra lib-ar-tay-t ..m
ma-tri-moh-nee-I). [Latin] Hist. Against freedom
of marriage. _ The phrase appeared in reference to
marriage restraints, some of which were illegaL
contra non producta (kon-tr.. non pr..-dak-t..). [Law
Latin "against things not produced"] Scots law. In a
reduction action, a decree declaring that a challenged
deed is void.
contra non valentem. See DOCTRINE OP CONTRA NON
VALENTEM.
contra omnes gentes (kon-tra om-neez jen-teez). [Latin]
Hist. Against all people. -These were the traditional
words of warranty in a deed.
contra omnes mortales (kon-tra ahm-neez mor-tay
leez). [Law Latin] Hist. Against all mortals. -This
language was contained in an absolute warranty.
contra pacem (kon-tra pay-sam). [Latin] Hist. Against
the peace. _ This term was used in indictments to
signify that the alleged offense was against the public
peace.
contra pietatem (kon-tr.. pl-..-tay-t..m). [Latini Hist.
Contrary to natural duty.
contraplacitum (kon-tra-plas- ..-tam). [Latin] Hist. A
counterplea.
contra proferentem (kon-tra prof-..-ren-t..m). [Latin
"against the offeror"] The doctrine that, in interpreting
documents, ambiguities are to be construed unfavor
ably to the drafter. -Also spelled contra pro/erentes.
Also termed ambigUity doctrine. [Cases: Contracts
155.]
contrarotulator (kon-tra-roch-y;day-tar or kon-tr,,-roh
ty~-lay-tdr). [Latin "controller"] Hist. A person respon
sible for collecting and managing funds on behalf of
the Crown or other government office. - A variety
of controllers existed in England, including the COll
trarotulator custumarum (controller of the customs),
contrarotulator hospitii domini regis (controller of the
king's household), and contrarotulator pipae (controller
of the pipe i.e., an officer who collected debts due to
the Exchequer).
contrary to law. (16c) Illegal; unlawful; conflicting with
established law.
contrary to the evidence. (16c) (Of an argument, finding,
etc.) conflicting with the weight of the evidence pre
sented at a contested hearing. contributio lucri at damni
contra spolium (kon-tr~ spoh-Iee- ..m). [Law Latin
"against the spoil"] Scots law. A real action for the
recovery of stolen movable property.
contra tabulas. See BONORUM POSSESSIO CONTRA
TABULAS.
contravene (kon-tr .. -veen), vb. l. To violate or infringe;
to defy <the soldier contravened the officer's order, and
then went AWOL>. 2. To come into conflict with; to be
contrary to <the court held that the regulation contra
venes public policy>.
contravening equity. See EQUITY.
contravention (kon-tr~-ven-shan). l. An act violating a
legal condition or obligation; esp., an entail heir's act
that conflicts with the entail provision. 2. French law. A
criminal breach ofa law, treaty, or agreement; a minor
violation of the law. - A contravention is traditionally
punishable bypeines de police, usu. a fine not exceeding
15 francs and imprisonment not exceeding three days.
See public-welfare offense under OFFENSE (1).
"We might get [terminological] help from the practice of
Continental Europe in which three classes of punishable
offenses are maintained crimes, delicts, and contraven
tions. The last word is used for those minor violations of
regulations, all of them necessary enough for public safety
and convenience, which are so numerous and so detailed
in our lives. It is a convenient term and is widely used in
the United States forjust such acts, but it has not yet been
made official. The Continental practice has the advantage
of using the word crimes only for really serious offenses,
which is in conformity with popular feeling on the subject."
Max Radin. The Law and You 92 (1948).
3. Scots law. An action brought for breach of a peace
bond. See LAWBURROWS. 4. Hist. Scots law. An act com
mitted in violation of a legal condition or obligation,
esp. one done contrary to a deed by an heir to an entail
ment.