| 词汇 | Covenant3 |
| 释义 | `1`Covenant3 `2` "Legal Lexicon": Covenants are affirmative and negative. 1st. An affirmative covenant is one by which the covenantor binds himself that something has already been done or shall be performed hereafter. Such a covenant will not deprive a man of a right lawfully enjoyed by him independently of the covenant; such as, if the lessor agreed with the lessee that he shall have thorns for hedges growing upon the land, by assignment of the lessor's bailiff; here no restraint is imposed upon the exercise of that liberty which the law allows to the lessee, and therefore he may take hedge-bote without assignment. A negative covenant is one where the party binds himself that he has not performed and will not perform a certain act; such as, that he will not encumber. Such a covenant cannot be said to be performed until it becomes impossible to break it. On this ground the courts are unwilling to construe a covenant of this kind to be a condition precedent. Therefore, where a tailor assigned his trade to the defendant, and covenanted thenceforth to desist from carrying on the said business with any of the customers, and the defendant in consideration of the performance thereof, covenanted to pay him a life annuity of some amount, it was held that if the words 'in consideration of the performance thereof,' should be deemed to amount to a condition precedent, the plaintiff would never obtain his annuity; because as at anytime during his life he might exercise his former trade, until his death it could never be ascertained whether he had performed the covenant or not. The defendant, however, on a breach by plaintiff, might have his remedy by a cross-action of covenant. There is also a difference between a negative covenant, which is only in affirmance of an affirmative covenant precedent, and a negative covenant which is additional to the affirmative covenant. To a covenant of the former class a plea of performance generally is good, but not to the latter; the defendant in that case must plead specially. Covenants, considered with regard to the parties who are to perform them, are joint or several. A joint covenant is one by which several parties agree to perform or do a thing together. In this case although there are several covenantors there is but one contract, and if the covenant be broken, all the covenantors living must be sued; as there is not a separate obligation of each, they cannot be sued separately. A several covenant is one entered into by one person only. It frequently happens that a number of persons enter into the same contract, and that each binds himself to perform the whole of it; in such case, when the Contract is under seal, the covenantors are severally bound for the performance of it. The terms usually employed to make a several covenant are 'severally,' or 'each of us.' In practice, it is common for the parties to bind themselves jointly and severally, and then the covenant is both joint and several. Covenants Are Executed Or Executory. An executed covenant is one which relates to an act already performed. An executory covenant is one to be performed at a future time. Covenants Are Obligatory Or Declaratory. An obligatory covenant is one which is binding on the party himself, and shall never be construed to raise a use. A declaratory covenant is one which serves to limit and direct uses. Covenants Are Principal And Auxiliary. A principal covenant is one which relates directly to the principal matter of the contract entered into between the parties; as, if A covenants to serve B for one year. An auxiliary covenant is one, which, not relating directly to the principal matter of the contract between the parties, yet relates to something connected with it; such as if A covenants with B, that C will perform his covenant to serve him for one year. In this case, if the principal covenant is void, the auxiliary is discharged. Covenants Are Legal Or Illegal. A legal covenant is one not forbidden by law. Covenants of this kind are always binding on the parties. Go to Covenant4 |
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