5. Impossibility. If a contract is entered into which it is impossible to perform, it is void. The impossibility must be in the act rather than in the party who is to perform. If the act is impossible for the party promising, but possible for others, it is his duty to perform. If A promises to release B from a debt due C, it is an impossibility from a legal standpoint. He must have authority to act. The promise of D to E on May first that a certain debt then due shall be paid by March first of the same year, is an impossibility and therefore void.

6. Moral Obligations. In enforcing agreements the courts look for a consideration, a benefit, or a detriment; hence, if nothing but a moral obligation is found to exist, it will not be enforced. In the eye of the law, no loss has been sustained, therefore no remedy can be had. It is not that the law refuses to countenance morality, but that the courts can only measure damages from the standpoint of gain to one party and loss to another. All men should live up to all promises made, but to be enforceable they must be based upon consideration. If payment has been made or any other performance had, a recovery for such may be made.

7. Past Consideration. A past consideration is receiving a benefit for which there is no legal obligation to reimburse. If, after receiving the benefit, the person assisted promises something of value as a recompense, the promise is not enforceable; e. g., A assists his neighbor, B, in putting out a fire. Sometime afterward B says he will give A a cow in payment for his services in helping to put out the fire. This agreement is not founded on a consideration and is therefore not enforceable. If, however, A had requested the other to do what he did, the law would imply a consideration which would be sufficient to support the subsequent promise or agreement.

8. Mutual Promises. Mutual promises will support each other, as each promise is the consideration upon which the other is based.

9. Part Payment of Debt. "The payment of a smaller sum in satisfaction of a larger is not a good discharge of the debt."

The debtor agreed to pay the debt in full; the part paid is but a consideration for that part of the debt; there is then no consideration for the balance. A Owes B $100.00. He pays $80, receiving a receipt in full and B's assurance that the debt is satisfied. B may nevertheless sue for $20, the balance. But if the debt is not due it may be cancelled by the payment of a smaller sum, since payment before maturity is a benefit conferred and therefore a valuable consideration.

Exception. If the debtor does something different from what the creditor is entitled to demand, the debt may be cancelled by what in reality is a smaller sum. A owes $100. If A gives B $50 and a parrot in satisfaction of the claim, or pays a certain sum of money and a certain amount of labor, or makes the payment at a different place, the debt may thus be fully canceled. The parties may agree to any value to the part that is different and they will be bound thereby. No such payment can, however, be made without the consent of the creditor.

43. Form. The law establishes no particular form to many contracts, the fact that there is a contractual relationship being usually sufficient. Yet, in the making of a few kinds of agreements, because of the character of the subject matter and because of the fallibility of human mind, the law directs a certain form and solemnity.

1. Statute of Frauds-History. Over two hundred years ago the Parliament of England enacted one of the most important of written laws; viz., "An act for the prevention of frauds and perjuries." This act is known as the Statute of Frauds. Its influence extends throughout the English speaking world, and this act has been re-enacted in nearly every country under the authority of Great Britain and in nearly every state in the Union. Yet, enough modifications have been made to render it necessary, in all questions under this act, for the student to refer to the statute laws of his particular state.

44. Classes. The formality of contracts will be discussed under two heads:

1. Formal Contracts. These depend for their validity upon a specified form. Such are deeds, and, in fact, all contracts that

are required to be under seal. The seal is said to import a consideration, or rather dispense with the necessity of proving one.

2. Simple Contracts. These depend for their validity upon consideration. They are subdivided into two classes: those that the law directs shall be formal and in writing in order that the evidence of the existence of the contract may best be preserved, and those that may or may not be in writing at the discretion of the parties to the contract.

45. What the Law Requires. The legal requirement is simple, the chief requisite being that some note or memorandum of the agreement shall be made, containing a description of the subject matter, stating the consideration for the same, and carrying the signature of the party to be charged or made liable. In order to protect both parties to the agreement, both should sign, as otherwise the contract would be enforceable from but one side.

46. What the Law Includes. It is now well established that the Statute of Frauds refers only to executory contracts.

47. Effect of Non-Compliance. The direction of the law. is that the substance of the agreement must be reduced to writing. If this direction is not observed it does not affect the validity of the agreement. It directs, "No action shall be brought unless the agreement is in writing and is signed." The agreement is therefore unenforceable but not void. If the parties have formed the agreement verbally, they may still carry it out and their action will be legal, but the court will not lend assistance in enforcing the agreement.

48. Ratification. An agreement orally made contrary to the Statute of Frauds may be finally reduced to writing and signed and thereby become enforceable. The statute rather aims to secure written evidence of the contract in order that fraud may be prevented.

49. Provisions of the Statute of Frauds. This law enacts that "no action shall be brought:

(1) To charge any executor or administrator upon any special promise to answer damages out of his own estate, or

(2) To charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person,

or

(3) To charge any person upon any agreement made in consideration of marriage, or

(4) Upon any contract for the sale of land, tenements, or hereditaments, or any other interest in, or concerning them, or (5) Upon any agreement which is not to be performed within the space of one year from the making thereof,

Unless the agreement upon which such action shall be based is in writing and signed by the party to be charged therewith or some person thereunto by him lawfully authorized."

Following the enactment of the above, was an act relating to the sale of personal property, to-wit:

"No contract for the sale of any goods, wares or merchandise for the price of ten pounds or upwards shall be allowed to be good, unless: A part of the goods so contracted for shall be delivered, or a part of the purchase price be given to bind the contract, unless the contract or agreement thereto be in writing and signed by the party to be charged."

A number of the phrases above need explanation. Let us consider them.

1. Promises of Executors and Administrators. An executor or administrator is one appointed for the purpose of winding up the affairs of a deceased person. He is not personally liable except that he must follow the law in the distribution of moneys and payment of legal debts. If he personally agrees to pay some claim of the estate, his promise is not binding unless in writing. However, if he personally agrees to pay a certain sum to an heir if he will not contest the will or bring suit, he will be obliged to live up to this agreement, whether in writing or not, as the agreement is an

original undertaking. A consideration must be shown for the agreement.

2. Debt, Default, and Miscarriage. When one agrees to answer for the debt, default, or miscarriage of another, three persons are considered: (1) debtor, (2) creditor, (3) the stranger who agrees to pay the debt for the debtor and against whom no previous liability existed.

(a) Nature of Agreement. The agreement may be original or collateral on the part of the stranger. If original, the agreement is without the statute and need not be in writing; if collateral, that is, dependent upon the debtor's paying, it is within the statute and must be in writing. For example, A says to B, "Let C have $100 credit at your store, and if he does not pay I will." This is a collateral undertaking, and it is not binding unless put in writing and signed by A. If he says, "Let C have credit for $100 and I will pay you," the agreement is original and is binding even though not in writing. If the debt has already been contracted, a new consideration must be given when the promise to pay is made by the stranger. This may be accomplished by the payment of something of value or by extending the term of credit.

3. Agreements in Consideration of Marriage. This statute does not relate to the contract to marry which is based upon mutual agreements, but rather to agreements prior to and collateral to marriages; as, where one of the parties to the marriage agrees to make a settlement of a certain sum of money on the other, or a parent or some third party says, "Upon your marriage to a certain person I will deed to you certain property." Subsequent marriage will not take the contract out of the statute. All such agreements must be in writing to be enforced.

4. Agreements for the Sale of Lands. The word land here is used in the broad sense of including not only land itself, but all claims thereto of a permanent character.

5. Agreements Not to Be Performed Within One Year. This clause relates to contracts that from their nature, or from the time when they are to begin, cannot be performed within the