Talk:Contract

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[edit] Rights of Third Parties

This whole area of the law of contract has been totally omitted. In English law, third parties to a contract didn't have the right to sue either of the original parties. See Dunlop Pneumatic Tyre Co. v Selfridge Co. [1915] AC 847. An analysis of Contracts (Rights of Third Parties) Act 1999 on this area of law needs to be included. Willstansfield 19:54, 4 September 2006 (UTC)

[edit] Validity of contracts

I thought another major element is "certainty of terms". Anyone? --68.127.89.164 23:14, 4 August 2005 (UTC)

Yeah, that sounds right. I remember from when I was studying for the California bar exam (which was last week) that an offer is supposed to have "definite and certain" terms and the acceptance must unequivocally manifest an intent to accept the offer.
Is that the case everywhere else? --Coolcaesar 23:23, 4 August 2005 (UTC)
I think contract with a minor is voidable not void. Anyone?
That sounds about right. If I recall correctly, the minor can choose to affirm the contract upon reaching majority or disaffirm it and render it void. So it's voidable (meaning it contains the potential to become void), but not void at inception. --Coolcaesar 21:21, 27 November 2005 (UTC)
A Minor is obliged to pay for goods and services that are "necessary goods"; necessary goods being defined as "suitable to the condition in life of the minor and to his actual requirements at the time of the sale and delivery" (s.3(3) Sale of Goods Act 1979). Note that necessary goods are not the same as necessities. In Ryder v Wombwell (1868) LR 4 Exch 32, a pair of cufflings worth £25 and a £15 goblet were held to be necessary goods for a child with a £500/year income. (Although the verdict was set aside for lack of evidence; the legal principle still applies). It is up to the Plaintiff (claimant) who is trying to enforce the contract to show that the goods are necessary goods. Willstansfield 20:15, 4 September 2006 (UTC)

An expert should add something to this section about the fact that both parties have to have the right to promise what they agree on for the contract to be valid, e.g. the situation of someone pretending to be a landlord and collecting rent. --Espoo 11:50, 25 August 2006 (UTC)

[edit] Puff or puffing or puffery?

The article says the term of art for sales talk is "puff," but here in the U.S. I was taught in Contracts that it was called "puffing." Also, Black's Law Dictionary, 7th ed., does not have a definition for "puff," but it does have a definition for "puffing," which includes the following note: "also known as puffery." I suspect that this is yet another American English v. Commonwealth English difference. Can anyone let us know exactly where the term "puff" is used instead of "puffing"? --Coolcaesar 18:47, 17 January 2006 (UTC)

  • In England & Wales we talk about a "mere puff", although I cannot provide a source for that off the top of my head. It implies you're right that this is a cross-Atlantic problem, though. AndyJones 19:06, 17 January 2006 (UTC)
    • "Mere puff" was mentioned in the Carlill v Carbolic Smoke Ball ([1893] 1 QB 256) case, as per Lindley LJ at 261. Sir Jimmy 10:29, 14 March 2006 (UTC)

[edit] Estopple

I noticed that there are no reference to estopple at all in the article. Is that because its is seen as two different parts of law? (ie. Common law and equity), or has someone simply forgotten? Sir Jimmy 10:31, 14 March 2006 (UTC)

See the Estoppel article. But yes, its exclusion is more due to the fact that it hasn't been written rather than an explicit intention to leave it out. enochlau (talk) 13:40, 14 March 2006 (UTC)

[edit] Fork

About forking this article:

  • Such a major change should not be done without prior discussion. I have reverted it. In particular, a lot of other pages need to be changed (e.g. the pages linked from the infobox), so this change shouldn't be taken lightly.
  • Unless we actually have content on contracts in the civil law, it is premature to fork it to common law/civil law articles.
  • Never move an article by copying and pasting. Use the move button and then recreate the original article if you really want to do this.

enochlau (talk) 04:00, 9 April 2006 (UTC)

I concur. From what I've read, civil law doesn't have a law of contracts per se, but rather treats it as part of the law of obligations. Therefore, I think any discussion of civil law contracts should be in a Wikipedia article on the law of obligations which should be linked to appropriately in a See also section in the footer of the Contract article.--Coolcaesar 06:26, 9 April 2006 (UTC)

[edit] Contractor?

I am trying to remove direct links to the contractor disambiguation page. As you'll see, it has a definition there, which is used by a few pages as a link, and seems sensible from those pages (see for example mentor). The definition does not really belong on the disambiguation page, could it be teased in here somewhere, so it all looks a bit more sensible? I'll not do anything for a while, as I don't want to over-lengthen or mess about with this article. A separate page just for a definition seems wrong, and a Wiktionary link in mentor would spoil the article. Help! LeeG 13:35, 3 June 2006 (UTC)

From what I understand, the definition provided on contractor ("A contractor is a legal term...") is not the legal term as it suggests. My legal dictionary states that a contractor is "the builder of a construction project". The usage suggested seems to be the more general, everyday usage. enochlau (talk) 17:24, 3 June 2006 (UTC)

Thanks, that is interesting. I had started to form the opinion that I would move that definition from the disambiguation page to the independent_contractor article as it seemed to fit better there, and it's easy to link back to contract. If it is not a legal definition I'll delete the bit that makes it purport to be so. Off to check out the Black's Legal Dictionary... LeeG 18:05, 3 June 2006 (UTC)

[edit] EULAs

EULAs in software seem to violate the fundamental form of contract (by adding unspecified terms after the exchange of value), and the very least I think the topic is worthy of linkage here. Thoughts? Belltower 16:25, 27 October 2006 (UTC)

[edit] ...without prior notice.

I've recently stumbled accross a contract which I've signed that stated "(This organisation) reserves the right to change, amend, or modify these rules at any time without prior notice."

Is this really legal?

They keep adding new laws to it without notification. And I'm getting blamed for breaking them.

They probably are - they're quite common. If they're really unfair though, could you probably complain to your local consumer watchdog. enochlau (talk) 21:47, 2 November 2006 (UTC)

[edit] edits by Wikidea

I see big problems with the recent edits to this article. First, it does not conform to the Wikipedia:Manual_of_Style. Secondly, despite the assertion that nothing was deleted, things were. The prior article had a concise list of the elements of a contract (consideration, proper subject matter, competent adult parties, etc., under the heading "validity of contracts"), which is now gone. The preamble continues to get more muddled. I am suggesting a revert, and a) first a discussion of the proposed changes/reorg, and b) more incremental changes. --Bhuston 03:43, 30 November 2006 (UTC)

I would agree with you. I have reverted the page. I'll analyse this in greater depth after I get some sleep. If you wish to dissect the main changes, please go ahead. enochlau (talk) 16:57, 30 November 2006 (UTC)
Sorry to upset anyone. Here are the reasons that the article needs change:
1. There is a muddled structure. e.g. Comparing contract and tort at the start isn't helpful, when you aren't sure yet what either are; e.g.2 why would the so called bilateral v. unilateral contracts section not be put in the same part as the so called elements of a contract section? Especially considering both are discussions straight out of Carlill v. Carbolic it's probably better to leave the seminal case of the law of contract as the top. The dog example in the bilateral v. unilateral contracts section is straight from what Bowen LJ said in the same case:

"If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course, they at once look after the dog, and as soon as they find the dog they have performed the condition. The essence of the transaction is that the dog should be found, and it is not necessary under such circumstances, as it seems to me, that in order to make the contract binding there should be any notification of acceptance."

Although that's probably more succinctly and eloquently expressed than in the current article! Better to start people off with Carlill (as almost every textbook does!)
2. There is too much "this and that is what a contract is" without references, and unfortunately it's often incorrect. The best parts of the article are at the bottom, where there's more case law dealt with. The lists at the top are repetitive. Both in the 'scope' and the 'elements' sections are references to 'capacity' to contract, the second part saying "...minor children, and mentally disabled individuals do not have the capacity to form a contract, and any contracts with them will be considered void or voidable." This is untrue. Of course children and mentally disabled people can make valid contracts. Quite right, there are (sometimes) different rules for kids and mentally disabled people, but more importantly, where is the reference to tell anyone?
3. There is no need to exclude civil law. For example, in the Buergerliches Gesetzbuch (the German civil code) para. 110 (the notorious Taschengeldparagraf[1] or 'pocket money paragraph') is authority for children to be able to make contracts. I noticed at the top of the current page it asks for a worldwide view, and that's fair. So it's a bad idea to put in titles things like Scope of common law contract law when it may go for contract law in all jurisdictions. It's an even worse idea when scope of contract law doesn't really mean anything. What does scope of contract law mean? Wouldn't that imply its place within the law of obligations? That section doesn't tell people, but instead talks about contractual formation, which is a more sensible heading.
4. Headings should try to have main links to other articles, esp. in such a big subject. That's why some more headings that were reverted had links to other articles - like offer and acceptance, consideration, etc. I wasn't quite sure what Bhuston meant by not following the Wikimanual, or which bit of it you had in mind. But I hope you agree that change isn't bad, and incrementalism isn't good, just for the sake of it. More references would be great, especially from different countries. User:Wikidea

[edit] Changing contract

I hope that the changes are a bit of an improvement. Further to the above, maybe it's just good to write down what I've done and why.

1. Contract formation is a clear way to start. Note that the side bar has the same category. It's a good way to unify all the stuff about 'validity' or making a contract

2. Terms of a contract are the next important part - the side bar has a section for contractual interpretation, which sort of falls under this heading; but the topic of 'contract terms' also includes things like implied terms, or increasingly 'consumer law' like UCTA 1977 in England, for example.

3. Setting aside the contract is a part that covers the (I suppose?) American way of saying 'defenses against formation' (the only difference in the Commonwealth countries I guess is we'd say 'defences against formation'!) and it also covers the 'excuses for non performance' category - also in the side bar. This side bar is good, isn't it! The only thing to note is that mistake and misrep really need to get put in (can't do all at once though!)

4. Remedies for breach of contract is the fourth header, because breach of contract is really covered when you go into the different types of remedy, and it makes sense to put them together (breach in itself isn't really anything difficult - frustration is the only knotty part, but otherwise breach is almost as simple as someone saying "I won't do it"!)

5. The contract and obligations bit I think does belong at the bottom, because it's probably best to give people an idea of the general rules before diving into theoretical debates that have been going since the middle ages - what does anyone think about putting it with contract theory? The two sort of go hand in hand, because the obligations debate is about 'what is the basis for creating and enforcing legal rights' and contract theory slides into the same, e.g. Atiyah's Rise and Fall of Contractual Freedom book covers the way the state inserts obligations into the framework of "commercial freedom".

But really, the changes are simple - and all it needs next is work on getting good referencing and a logical story as you read the article through. Hope to hear more from everyone! User:Wikidea

Again, Revert User:Wikidea's big changes : I am doing as User:Enochlau did initially and am reverting these changes. User:Wikidea, you have said "nothing has been deleted", "the changes are simple", and that you have "improved" things, but this is simply not the case. The structure is very different, and essential details (elements of a contract) have again been deleted. I will try to (later in the day, like in a few hours) tell you exactly what I feel are the problems with this massive edit -- not the least of which being that you have not attempted to justify it here on the Talk page first, as requested -- Bhuston 09:35, 3 December 2006 (UTC)
Sorry, I'll make detailed comments soon as well - I have more time during weekdays. I agree with Wikidea that there are problems with the article, sure, but regardless, I have some issues with your changes. enochlau (talk) 14:21, 3 December 2006 (UTC)
Come on guys, I don't think repeated reverts really help. I gave all the reasons I thought the structure I've given is better above. The biggest reason perhaps, is simply that the contract law template is on my side, not the side of the previous page. No essential details have been deleted. If they have, why not put them back into the existing page? No references have been deleted. If there are issues with the content of the changes, I'm all too happy to have them corrected! But nothing's been added to the page otherwise. Just have a read of any good textbook on the subject (or, again, the contract law template) and it'll assure you that this is a better way forward. At the start of the Wikipedia:Resolving disputes page it says:
"Be respectful to others and their points of view. This means primarily: Do not simply revert changes in a dispute. When someone makes an edit you consider biased or inaccurate, improve the edit, rather than reverting it. Provide a good edit summary when making significant changes that other users might object to. The revision you would prefer will not be established by reverting, and repeated reverting is forbidden; discuss disputed changes on the talk page."
I just added bits that are needed on misrep and mistake. The last reversion cut out all the stuff with headings and links to new articles, the new description of consideration, and a host of new references (you can see the list growing). It'd be really great if you could use your knowledge to add more of the same. User:Wikidea

[edit] Vandalism by Wikidea

Wikidea, I am not happy with your edits. Can you a) propose the change you want to make FIRST, and attempt to get consensus? As I have stated, I am not happy with your massive restructuring. You have made false assertions about improvment and preserving information, when in fact you are not adhering to WP:MOS and deleting useful information (such as the most basic: elements of a contract). I consider your blanking large sections of this article is more than just a bold edit. It is vandalism according to WP:VANDAL. Please stop and discuss FIRST. --Bhuston 03:45, 4 December 2006 (UTC)

"Any good-faith effort to improve the encyclopedia, even if misguided or ill-considered, is not vandalism. Apparent bad-faith edits that do not make their bad-faith nature inarguably explicit are not considered vandalism at Wikipedia." From Wikipedia:Vandalism
It's not nice to accuse people of vandalism when they're trying to help. It's not smart to accuse people of vandalism and cite the WP:Vandal page when it doesn't match what's written there. There's no requirement to ask peoples' permission before updating a page. The elements of a contract have not been deleted, the updates I put now mean that there are 36 instead of 17 references, there is less innaccurate information, along with a clear structure resembling the template, and proper links to the main articles. But reverting so quickly, one may not notice this. I would like to help more, but the changes get reverted. Moreover, there has been no response to any of the points listed above. At all. Can anyone else please offer their opinion? User:Wikidea
I don't think your edits are vandalism. However, I think you should make changes slowly and explain your rationale, so that other people interested in the page have sufficient time to review them. Anyway, what of my offer to meet you in person? enochlau (talk) 10:57, 4 December 2006 (UTC)
Hi Enoch, I replied on your User page a few days ago! Wikidea 00:43, 6 December 2006 (UTC)
It's vandalism if you are blanking (the most) useful content, hidden within the contect of a massive edit, while saying "just tidying up, nothing being deleted". It seems like bad faith, yet I know I must assume the best. But when you try this twice after being asked to explain your massive edits first, or make them more incrementally... As I must assume good faith, your actions should show likewise. I'm glad we are having this talk. --Bhuston 02:31, 5 December 2006 (UTC)

[edit] Critique of present article, Wikidea's edits

Wikidea writes, with my comments in bold intermixed.

There is a muddled structure. e.g. Comparing contract and tort at the start isn't helpful, when you aren't sure yet what either are; -> agree e.g.2 why would the so called bilateral v. unilateral contracts section not be put in the same part as the so called elements of a contract section? -> because those are two types of a contract, not elements which every contract must have Especially considering both are discussions straight out of Carlill v. Carbolic it's probably better to leave the seminal case of the law of contract as the top. The dog example in the bilateral v. unilateral contracts section is straight from what Bowen LJ said in the same case:

"If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course, they at once look after the dog, and as soon as they find the dog they have performed the condition. The essence of the transaction is that the dog should be found, and it is not necessary under such circumstances, as it seems to me, that in order to make the contract binding there should be any notification of acceptance."

Although that's probably more succinctly and eloquently expressed than in the current article! Better to start people off with Carlill (as almost every textbook does!) -> If you mean move something up from farther down, go for it. I have a big problem with your deletes of useful information. Rearranging for clarity is always fine.
2. There is too much "this and that is what a contract is" without references, and unfortunately it's often incorrect. -> specific examples please The best parts of the article are at the bottom, where there's more case law dealt with. -> disagree. In an encyclopedia entry on contracts, one of the first things better be "what a contract is". The lists at the top are repetitive. Both in the 'scope' and the 'elements' sections are references to 'capacity' to contract, the second part saying "...minor children, and mentally disabled individuals do not have the capacity to form a contract, and any contracts with them will be considered void or voidable." This is untrue. Of course children and mentally disabled people can make valid contracts. Quite right, there are (sometimes) different rules for kids and mentally disabled people, but more importantly, where is the reference to tell anyone? -> A reference would be nice, and perhaps this may be local government specific. What I will tell you is that in the United States, neither children, the insane, prisoners, animals, trees, or rocks are free to make contacts with people, as they are not sui juris. Are you saying that in Austrailia, children are allowed to make legal decisions for themselves? Then can a 10 y/o get married in Perth? I don't think so, or please cite case law from any showing that children can make contracts. I'm talking about civilized nations, where children do not perform compulsory labor, or work as prostitues, etc.
3. There is no need to exclude civil law. For example, in the Buergerliches Gesetzbuch (the German civil code) para. 110 (the notorious Taschengeldparagraf[2] or 'pocket money paragraph') is authority for children to be able to make contracts. I noticed at the top of the current page it asks for a worldwide view, and that's fair. So it's a bad idea to put in titles things like Scope of common law contract law when it may go for contract law in all jurisdictions. -> So how about general concepts, and when-needed, saying "but this feature is not universally held, e.g., in Foostanislad, children drink alcohol, get married, fight in wars, and start businesses" It's an even worse idea when scope of contract law doesn't really mean anything. What does scope of contract law mean? -> I agree, these seem weird Wouldn't that imply its place within the law of obligations? That section doesn't tell people, but instead talks about contractual formation, which is a more sensible heading.
4. Headings should try to have main links to other articles, esp. in such a big subject. That's why some more headings that were reverted had links to other articles - like offer and acceptance, consideration, etc. -> If you mean this article is way too long in addition to being disorganized, I strongly agree. Big ancillary topics should be broken up into distinct articles. I think the "elements of a contract" section is the essence (the part you keep deleting), but we have to deal with "contract law" because that redirects here. I wasn't quite sure what Bhuston meant by not following the Wikimanual, or which bit of it you had in mind. You weren't bolding the first occurance of the main title. Several things redirect here, so there may be several of these bolded. But I hope you agree that change isn't bad agree, and incrementalism isn't good -> incremental change to good sections is desirable, and boldly whack the bad. Problem is, you were blanking the best part, just for the sake of it. More references would be great, especially from different countries. agree... I'll write more later, with specific problems with your edit. But I have an emergency to deal with now :( User:Wikidea -- Bhuston 02:27, 5 December 2006 (UTC)

'

[edit] here is the critique of Wikidea's massive edit

a contract is a concept in law that refers to ...

"A concept which refers to" sounds too indirect and thus not sound like an encyclopedia. How about "a contract is an agreement and such and such etc."?? Much more direct and succinct.

The core principle of contract is summed up in

Again, this does not sound like an encyclopedia. How about "A contract is a promise which must be kept" without the "core principle" or being "summed up"?

Contract law can be broken down into five major issues:

"Broken down"? How about "Contract law is composed of five areas"

*When and how are contracts formed?, etc.

This indirection/questioning is not good form, I think. Rather than enumerating the areas themselves, you propose questions the reader should ask to determine the areas. Why all the extra work? An encyclopedia shouldn't ask questions; it should state facts.

And again, I would like the FIRST section to be "Elements of a contract". It's most important. You know the one, it's the section you keep deleting :) What else should an encyclopedia state beyond this? This is most important. Everything else is of lesser importance and should come later.

So I think we both agree the structure of the present article is bad. Can you propose a new structure, where we can preserve all existing content and just conform to the better structure? THen we can incrementally improve each section, perhaps forking off into new seperate articles. I will propose a new structure in about 6 hours... Again, I'm glad we are having this discussion. If we can come to an agreement, this article will be improved. Thanks... -- Bhuston 03:45, 5 December 2006 (UTC)

Bhuston, good critique! I concur wholly with you on this one. Law is hard enough as is, and it's really hard to explain to laypersons. Wikidea needs to keep in mind that when writing about law for laypersons on Wikipedia, always keep in mind the KISS principle: KEEP IT SIMPLE STUPID. Structuring writing around answers to rhetorical questions is an extremely verbose format that should be reserved for surrealistic novels, not encyclopedias! That's why compact works like the In A Nutshell books from Thomson West rarely use the rhetorical question format. --Coolcaesar 05:35, 5 December 2006 (UTC)
But, Coolcaesar, I only left in the 'verbose format' of rhetorical questions, because that was what was there and I didn't want to change too much!! - it's in the section called contract scope as currently uneditted! I agree things should be more simple, of course. What do you think then about moving the theoretical discussion of contract and obligations to the bottom, which I suggested earlier?
Okay, Bhuston, I agree with all the stuff you actually said, about written style etc. Please go ahead with all the changes there you like. But please let me explain the 'elements of a contract' bit. Really, honestly, truly, it wasn't deleted, but what I did do was to split it. Conventionally, as in the template, you'd talk about offer and acceptance, consideration, intention to be legally bound (as is there now) under 'contractual formation'. And then there was incomplete and uncertain agreements, moved up from further down in the article. After I editted further down, you could still find all the other bits that are currently under 'elements of a contract' under 'setting aside a contract' - i.e. incapacity, and illegality (I actually don't know what 'mutual right to remedy' or 'obligation to perform' is meant to refer to, but I expect it's covered). Normally we wouldn't talk about capacity or legality being an essential 'element' of a contract. The reason is that lack of capacity usually gives the individual a right to choose whether to 'set a contract aside' (that's so people can't take advantage of minors and the mentally handicapped) - and so you can have an valid contract without legal capacity to contract, and it's not really an 'element of a contract'. Above was the reference to the German law example, but I'd be v. surprised if it were different in the States. Is that being more helpful? Wikidea 06:33, 5 December 2006 (UTC)
Hi, Wikidea. Thanks. Yes this discussion is helpful. You wrote: "Really, honestly, truly, it wasn't deleted,"... You keep asserting it's all there. But it ain't. Or you've taken a short, concise list, and "split it" like splitting an atom, perhaps? Like, smashed it into bits? I will be very happy if you leave the concise list... :) "Incomplete and uncertain agreements" are NOT elements of a contract. These are defects. This should be in a seperate section, perhaps about void or voidable contracts. "Offer and acceptance" are not really elements of a contract, it's two steps in the process of negotiating a contract. You wrote: After I editted further down, you could still find all the other bits that are currently under 'elements of a contract' under 'setting aside a contract' i.e. incapacity, and illegality This is strange. Why should someone look for the elements of a contract under a heading "setting aside a contract"? Again, not elements of a contract. Should be in a section about completion, termination, default, etc. Also, "incapacity and illegality" again are defects, not elements of all contracts. Normally we wouldn't talk about capacity or legality being an essential 'element' of a contract. I would agree. But capacity isn't on the list of elements. "Adult, competent sui juris parties" is (properly) on the list. This is because rocks, trees, dogs, children, prisoners, the insane, etc. are not generally seen to be fit to engage in contracts. Contracts with a dog or a child as a party are most likely void. Also, when you say "legality" is on the list, I don't find it. The entire list is talking about elements of all legal contracts, but "legality" itself isn't there. (I actually don't know what 'mutual right to remedy' or 'obligation to perform' is meant to refer to, but I expect it's covered). We should expect these to be explicitly covered, because these are essential concepts. Compare EX1: an employeer/employee relationship, and EX2: A master/slave relationship. In EX1, both parties have made a contract, and made promises to each other, how many hours work for so much pay, etc. If the company doesn't pay or the employee doesn't work, both have a right of remedy in the courts. However, the master/slave relationship is NOT contractual, because the slave has no such rights of remedy. Same with "obligation to perform". The master has no obligation, because the master has all the rights, and the slave has none. The whole notion of a contract requires a certain egalitarianism among parties. When one party has much more rights a priori over the other, then it becomes questionable whether coercion is involved. Contracts must be freely entered into. Hope this helps! --Bhuston 09:52, 5 December 2006 (UTC)


I'm sorry, but the terminology elements of a contract just doesn't make sense; it might make more sense if you said elements of contractual formation. Elements of a contract could easily refer to terms, or what's inside a contract. Again, I'm really sorry, but you've just got a lot of the stuff plain wrong. I wouldn't purport to explain computer programming to you, because I don't know the first thing about it. It's not, as I tried to explain, a requirement for contractual formation that someone is not a child - that is the difference between a void and voidable contract; all that stuff belongs together in a section about setting contracts aside. An illegality topic is the equivalent of what is on the list - lawful purpose. The stuff about mutual rights to remedy, etc, again, they just don't make sense, or don't explain what they mean.
I see that before you began reverting, you made one edit on this page, coincidentally on this same section, back on Janurary 4 2004, so I appreciate that you feel attached to it, and all the hard work you've put in. But it's really not fair on people who want to look at the article to be informed.
And once again, the point I stated over and over before which you haven't replied to, the template, which was written by people who seem to have read a few books, starts with a section on contractual formation. And then the stuff about capacity (or the sui juris adult, as you said) is in a different section. Why can the page not be like the template? Wikidea 00:41, 6 December 2006 (UTC)

[edit] "elements of contracts" vs. "validity of contracts"

Someone (67.52.230.45) has changed "Elements of contracts -> All valid contracts must have the following elements" to "Validity of contracts -> For a contract to be valid, it must meet the following criteria". This change was made without explaination. I have reverted this (as well as a blanking of an example, also w/o explaination).

The reason I think the former is better is because an encyclopedia entry should answer the most basic questions, like "What is a contract"? A contract can be described as a set of elements. Some may be necessary, and some may be optional. Well, what are those elements? "Elements of Contracts" seems like a natural and necessary heading, in order to define what a contract is. Now if it is called "Validity of Contracts", this heading does not sound like it will contain a list of the elements of all contracts. Instead, it sounds like criteria for determine valid or invalid (void/voidable) contracts, which is something potentially different. They *may* be similar, but to me, "Elemenets of Contracts" is much stronger, and is really the most important section in this entry --Bhuston 01:41, 6 December 2006 (UTC)

I concur. "Elements of contracts" is the correct terminology; it's what BarBri taught me and it's what I was tested on when I took the bar exam. I remember it quite clearly from Contracts in law school, which I took with one of the most prominent law professors in the United States (although his most famous work is on property rights in human body parts).
It sounds like Wikidea is either very young, or the terminology of Australian contract law is just plain weird (the Brits use the same analysis as us Americans as far as I know). Either way, this is one of the reasons law is taught primarily at the graduate/professional level in the United States, because common law in general is so conceptually difficult that few people under the age of 20 can develop a genuine working knowledge of it (Christopher Columbus Langdell was responsible for that insight, of course). --Coolcaesar 08:59, 6 December 2006 (UTC)
This wasn't me!!! You can see my IP address when I log out! User:Wikidea138.130.32.177 09:41, 6 December 2006 (UTC)

[edit] Response to Wikidea's last

Wikidea writes (with my responses in bold):

I'm sorry, but the terminology elements of a contract just doesn't make sense; it might make more sense if you said elements of contractual formation. (Disagree. Formation is a process of two parties coming to an understanding and agreement. A contract itself is composed of certain elements. If you want to talk about formation, then start a new section. Defining the basic elements which define all contracts is THE MOST BASIC AND NECESSARY PART of an encyclopedia entry on Contract.) Elements of a contract could easily refer to terms, or what's inside a contract. ( I have added Terms to this section. Does this make things better for you?) Again, I'm really sorry, but you've just got a lot of the stuff plain wrong. (Again, specific examples and citations please) It's not, as I tried to explain, a requirement for contractual formation that someone is not a child (Strongly disagree. I have asked for you repeatedly to demonstrate this with caselaw or other references. In every civilized nation I've ever heard of, children are not considered sui juris and being sui juris is a requirement for contract formulation. Children cannot marry, children cannot vote, they cannot purchase houses, or drive cars, or be conscripted into the military. They cannot because they are not "of their own right". Insane or Non compos mentos? Not sui juris. Not a human? Not sui juris. Not an adult? Not sui juris. The only exception to this that I know of is the case of a corporation, which has been granted personhood by the courts) all that stuff belongs together in a section about setting contracts aside. (FINE! Create new section. Just please don't delete basic and necessary information from the Elements section.) An illegality topic is the equivalent of what is on the list - lawful purpose. (Again, this is true. But would you describe what's in a box by first describing what isn't there? THis is what you are doing. Instead of talking about what a contract IS, you are focusing on what a contract ISN'T. THis is not typical of encyclopedias which I have looked at.) The stuff about mutual rights to remedy, etc, again, they just don't make sense, or don't explain what they mean. ( I disagree. I think it is very clear. A slave has no right of remedy, so a master/slave relationship is not contractual. Another example which lawyer types insert into contracts used upon the unsuspecting public are so-called "indemnifaction" clauses. They state "by signing this, I waive all rights to remedy". To a layperson who doesn't understand that right to remedy is essential to all contracts, this seems acceptable, and this state of ignorance is followed by getting screwed. You state you want to inform people with these changes. Is this true, Wikidea?)
I see that before you began reverting, you made one edit on this page, coincidentally on this same section, back on Janurary 4 2004, so I appreciate that you feel attached to it, and all the hard work you've put in. But it's really not fair on people who want to look at the article to be informed. (I am fine with reorganization. I am fine with enhancement. But when you DELETE THE MOST BASIC AND NECESSARY INFORMATION, or turn statements into questions, and otherwise make the information more obscure, that is when I have a problem. Parts of this article needs a lot of work. THe Elements section is not one of them, as it's pretty good.)
And once again, the point I stated over and over before which you haven't replied to, the template, which was written by people who seem to have read a few books, starts with a section on contractual formation. And then the stuff about capacity (or the sui juris adult, as you said) is in a different section. Why can the page not be like the template? Wikidea 00:41, 6 December 2006 (UTC) ( I don't know about the template. But to my way of thinking, when I come to an encyclopedia entry about Dogs, I want to know, "What is a dog?" When I come to an entry about Contracts, it's because I want to know, "WHat is a contract"? The question, "How are contracts formed" is ancillary and should come after a defining section, which is what the elements section does. --Bhuston 02:16, 6 December 2006 (UTC) )
Again, I concur with Bhuston's critique. Contract formation is important, but I think it's more important to first explain what is actually being formed! --Coolcaesar 09:01, 6 December 2006 (UTC)
Okay, I lose, you win! If it's alright, I'll just do the things that people seem to approve of - with some of the other headings. Not all at once though! So I'm moving the elements part to the top, because maybe it's good to serve as an introduction? - and the contract/obligations discussion down with contract theory. Wikidea 09:09, 6 December 2006 (UTC)
It's not about winning/losing. It's about making sure the encyclopedia is always improved, and when that happens, we all win. --Bill Huston (talk) 09:53, 8 December 2006 (UTC)

[edit] And next?

Okay, so the elements of contract isn't being touched. I just wanted to make more adjustments that I had before - putting some of the case citations into proper references, and some 'further reading. Then I'm going to put in the bits on mistake, misrep, duress and undue influence that were there before, under 'setting aside the contract'; because I think these are really useful additions to expand upon.

And no more changes tonight. Can I ask though, would it be okay to get rid of the 'scope of contract' section? We can get rid of the 'verbose format' of questions at the start, and give contract formation its own ==heading==. Under that, perhaps there could be more on offer+acceptance, consideration, intention to be legally bound and formalities(i.e.statute of frauds). This can be merged with the discussion on unilateral contracts and written contracts, to cut down a little. Privity (or third parties) can be put at the bottom in its own category. Wikidea 09:27, 6 December 2006 (UTC)


I've made edits in stages this time, so if there are any objections, perhaps the bit that the person is interested in can be changed alone, without removing all the changes I made? As discussed, the scope of contract part has been disbursed. Here's what's gone where in the last edit, which is the only confusing one, and couldn't be explained in the small space on the history thing:
  • written contracts = formalities and writing, with proper link to statute of frauds page
  • void, voidable and unenforceable=in the setting aside contracts bit; except the uncertain, incomplete and severance parts, which I think belong best in their own category?
  • bilateral v unilateral - with offer and acceptance section:that's especially a good place, because the carlill case deals with this exactly
  • express and implied contracts, into offer and acceptance again, which now has a link to a main article too (better place for some detail)

And then I put up a part about the german approach to contract law (or Vertragrecht) which differs. I'll try to do more on german law soon, and perhaps the worldwide view warning can be removed?Wikidea 08:16, 8 December 2006 (UTC)

[edit] This is not a "contracts" article at all - retitle?

This article suffers from a heavy case of what you might call "1L bias" - it consists almost exclusively of the kind of material covered in a first-year contracts class in an American law school. The history of contract, contract in non-common-law systems, and nonlegal (e.g. philosophical, religious, sociological) conceptions of contract are not covered at all. Perhaps the article would be better titled "contract under common law"? Elliotreed 09:28, 8 December 2006 (UTC)

Why complain? If you are able, why not write those sections yourself? --Bill Huston (talk) 09:52, 8 December 2006 (UTC)
Hopefully I can put in a bit more about civil law systems, and make it less common law oriented. There's a heading now about the german 'abstraction principle' and the section on consideration now compares with civil law. Moreover, the majority of the cases cited aren't from the States, but the Commonwealth. So it's not entirely true that its straight from US law school. There's a part for contract theory down the bottom where you could write all the stuff you know about philosophical, religious and sociological conceptions of contract, if you want? Wikidea 10:15, 8 December 2006 (UTC)
My main objection is that it will be too long if we cover the specifics of both civil and common law in the one article. My suggestion would be to make this a summary article that highlights the common features of both systems, and then we have specific articles for both systems. The advantage of this is that most people reading it would usually be interested more on one particular system of law. However, I don't know enough about civil to do this. enochlau (talk) 13:00, 8 December 2006 (UTC)
I agree - the page should be an intro, and sketch the main areas. Expansive detail really belongs in pages that the contract article links to. However, there is a great deal in common, and it's difficult to just talk of the 'civil law'. The French(plus the Americas, Italy, Spain, parts of Africa, etc, etc) and the Germans(plus Japanese, Chinese) are the two dominant models. I'd say it's mainly the absence of consideration and the better development of unjust enrichment law (so the remedies for breach part) that are the big differences. There's also a lot of interesting stuff going on in the EU, where contract law is trying to be harmonised - so you've got a third system developing!Wikidea 00:48, 9 December 2006 (UTC)
Just another thought - if a rule is stated in the article, like "an offer is interpreted objectively" and a reference is given, then when the rule is the same in another country, that can just be reflected in the footnotes - a US case, an English academic and an article of the French code civil altogether, for instance. That way the article itself isn't cluttered up so much, perhaps?Wikidea 01:00, 9 December 2006 (UTC)

[edit] Holy crap... another massive Wikidea edit...

Wikidea, can you PLEASE make your massive edits more incrementally, so we can more easily see what you are doing? I'm now very sensitive to the fact that within the context of your "reorganizations" where "no information is deleted", in fact you do delete things.

OK, I've only looked at the preamble. As I have stated several times, I think it is important to bold "Contract law" because that links here. Also, I removed "person" from the bit about breach, b/c corporations can be parties to a contract which can breach, yet are not persons. More later ... Bill Huston (talk) 10:00, 8 December 2006 (UTC)

Changes were done in three stages. I've listed the changes above - and there are three edits, to make you happy. The main bit that has been cut down is the stuff on unilateral contracts. I only thought going into so much detail there, belonged more in the offer and acceptance page that there's a new link for.

Perhaps you can revert incrementally this time? :) Not that you should need to to revert anything. Wikidea 10:11, 8 December 2006 (UTC)

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