| 词汇 | Covenant |
| 释义 | `1`Covenant `2` "Legal Lexicon": COVENANT - A covenant, in its most general signification, means any kind of promise or contract, whether it be made in writing or by parol. In a more technical sense, and the one in which it is here considered, a covenant is an agreement between two or more persons, entered into in writing and under seal, whereby either party stipulates for the truth of certain facts, or promises to perform or give something to the other, or to abstain from the performance of certain things. It differs from an express assumpsit in that the former may be verbal or in writing not under seal, while the latter must always be by deed. In an assumpsit, a consideration must be shown; in a covenant no consideration is necessary to give it validity, even in a court of equity. It is proposed to consider first, the general requisites of a covenant; and secondly, the several kinds of covenants. The general requisites are; 1st. Proper parties. 2d. Words of agreement. 3d A legal purpose. 4th. A proper form. - 1st. The parties must be such as by law can enter into a contract. If either for want of understanding, as in the case of an idiot or lunatic; or in the case of an infant, where the contract is not for his benefit; or where there is understanding, but owing to certain causes, as coverture, in the case of a married woman, or duress, in every case, the parties are not competent, they cannot bind themselves. - 2d. There must be an agreement. The assent or consent must be mutual for the agreement would be incomplete if either party withheld his assent to any of its terms. The assent of the parties to a contract necessarily supposes a free, fair, serious exercise of the reasoning faculty. Now, if from any cause, this free assent be not given, the contract is not binding. - 3d. A covenant against any positive law or public policy, is, generally speaking, void. An example of the first is a covenant by one man that he will rob another; and of the last, a covenant by a merchant or tradesman that he will not follow his occupation or calling. This, if it be unlimited, is absolutely void, but if the covenant be that he shall not pursue his business in a particular place, such as that he will not trade in the city of Philadelphia, the covenant is no longer against public policy. - 4th. To make a covenant it must, according to the definition above given, be by deed or under seal. No particular form of words is necessary to make a covenant, but any words which manifest the intention of the parties, in respect to the subject matter of the contract, are sufficient. In some states, it was declared by statute that the words grant, bargain and sell shall amount to a covenant that the grantor was seised of an estate in fee, free from all incumbrances done or suffered by him, and for quiet enjoyment against his acts. But it has been adjudged that those words in the Pennsylvania statute of 1715, (and the decision will equally apply to the statutory language in the other states,) did not amount to a general warranty, but merely to a covenant that the grantor had not done any act, nor created any incumbrance whereby the estate might be defeated. The several kinds of covenants. They are, 1. Express or implied. An express covenant, or a covenant in fact, is one expressly agreed between the parties and inserted in the deed. The law does not require any particular form to create an express covenant. The formal word 'covenant' is therefore not indispensably requisite. The words 'I oblige;' 'agree,' or, 'I bind myself to pay so much such a day, and so much such another day;' are held to be covenants; and so are the word's of a bond. But words importing merely an order or direction that other persons should pay a sum of money, are not a coveiaant. Go to Covenant2 |
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