CONTRABAND1, mar2. law. Its most extensive sense, means all commerce which is carried on contrary to the laws of the state. This term is also used to designate all kinds of merchandise which are used, or transported, against the interdictions published by a ban or solemn cry.
2. The term is usually applied3 to that unlawful commerce which is so carried on in time of war. Merlin, Repert. h. t. Commodities particularly useful in war are contraband as arms, ammunition5, horses, timber for ship building, and every kind of naval6 stores. When articles come into use as implements7 of war, which were before innocent, they may be declared to be contraband. The greatest difficulty to decide what is contraband seems to have occurred in the instance of provisions, which have not been held to be universally contraband, though Vattel admits that they become so on certain occasions, when there is an expectation of reducing an enemy by famine.
3. In modern times one of the principal criteria8 adopted by the courts for the decision of the question, whether any particular cargo9 of provisions be confiscable as contraband, is to examine whether tbose provisions be in a rude or manufactured state; for all articles, in such examinations, are treated with greater indulgence in their natural condition than when wrought10 tip for the convenience of the enemy's immediate11 use. Iron, unwrought, is therefore treated with indulgence, though anchors, and other instruments fabricated out of it, are directly contraband. 1 Rob. Rep. 1 89. See Vattel, b. 3, c. 7 Chitty's L. of Nat. 120; Marsh12. Ins. 78; 2 Bro. Civ., Law, 311; 1 Kent. Com. 135; 3 Id. 215. 4. Contraband of war, is the act by which, in times of war, a neutral vessel13 introduces, or attempts to introduce into the territory of, one of the belligerent14 parties, arms, ammunition, or other effects intended for, or which may serve, hostile operations. Merlin, Repert. h. t. 1 Kent, Com. 135; Mann. Comm. B. 3, c. 7; 6 Mass. 102; 1 Wheat. 382; 1 Cowen, 56 John. Cas. 77, 120.
CONTRACT. This term, in its more extensive sense, includes every description of agreement, or obligation, whereby one party becomes bound to another to pay a sum of money, or to do or omit to do a certain act; or, a contract is an act which contains a perfect obligation. In its more confined sense, it is an agreement between two or more persons, concerning something to be, done, whereby both parties are hound to each other, *or one is bound to the other. 1 Pow. Contr. 6; Civ. Code of Lo. art. 1754; Code Civ. 1101; Poth. Oblig. pt. i. c. 1, S. 1, 1; Blackstone, (2 Comm. 442,) defines it to be an agreement, upon a sufficient consideration, to do or not to do a particular thing. A contract has also been defined to be a compact between two or more persons. 6 Cranch, R. 136.
2. Contracts are divided into express or implied. An express contract is one where the terms of the agreement are openly uttered and avowed15 at the time of making, as to pay a stated price for certain goods. 2 BI . Com. 443.
3. Express contracts are of three sorts 1. BI parol, or in writing, as contradistinguished from specialties16. 2. By specialty17 or under seal. 3. Of record.
4. - l. A parol contract is defined to be a bargain or voluntary agreement made, either orally or in writing not under, seal, upon a good consideration, between two or more persons capable of contracting, to, do a lawful4 act, or to omit to do something, the performance whereof is not enjoined18 by law. 1 Com. Contr. 2 Chit. Contr. 2.
5. From this definition it appears, that to constitute a sufficient parol agreement, there must be, 1st. The reciprocal or mutual19 assent20 of two or more persons competent to contract. Every agreement ought to be so certain and complete, that each party may have an action upon it; and the agreement would be incomplete if either party withheld21 his assent to any of its terms. Peake's R. 227; 3 T. R. 653; 1 B. & A. 681 1 Pick. R. 278. The agreement must, in general, be obligatory22 on both parties, or it binds23 neither. To this rule there are, however, some exceptions, as in the case of an infant's contract. He may always sue, though he cannot be sued, on his contract. Stra. 937. See other instances; 6 East, 307; 3 Taunt24. 169; 5 Taunt. 788; 3 B. & C. 232.
6. - 2d. There must be a good and valid25 consideration, motive26 or inducement to make the promise, upon which a party is charged, for this is of the very essence of a contract under seal, and must exist, although the contract be reduced to writing. 7 T. R. 350, note (a); 2 Bl. Coin. 444. See this Dict. Consideration; Fonb. Tr. Eq. 335, n. (a) Chit. Bills. 68.
7. - 3d. There must be a thing to be done, wbicb is not forbidden; or a thing to be omitted, the performance of which is not enjoined by law. A fraudulent or immoral27 contract, or one contrary to public policy is void Chit. Contr. 215, 217, 222: and it is also void if contrary to a statute28. Id. 228 to 250; 1 Binn. 118; 4 Dall. 298 4 Yeates, 24, 84; 6 Binn. 321; 4 Serg & Rawle, 159; 4 Dall. 269; 1 Binn. 110 2 Browne's R. 48. As to contracts which are void for want of a compliance29 with the statutes30 of frauds, see Frauds, Statute of.
8. - 2. The second kind of express contracts are specialties, or those which are made under seal, as deeds, bonds, and the like; they are not merely written, but delivered over by the party bound. The solemnity and deliberation with whicb, on account of the ceremonies to be observed, a deed or bond is presumed to be entered into, attach to it an importance and character which do not belong to a simple contract. In the case of a specially32, no consideration is necessary to give it validity, even in a court of equity33. Plowd. 308; 7 T. R. 477; 4 B. & A. 652; 3 T. R. 438; 3 Bingh. 111, 112; 1 Fonb. Eq, 342, note When, a contract by specialty has been changed by a parol agreement, the whole of it becomes a parol contract. 2 Watts34, 451; 9 Pick. 298; see 13 Wend. 71.
9. - 3. The highest kind of express contracts are those of record, such as judgments35, recognizances of bail36, and in England, statutes merchant and staple37, and other securities of the same nature, cutered into with the intervention38 of some public authority. 2 Bl. Com. 465 . See Authentic39 Facts.
10. Implied contracts are such as reason and justice dictates40, and which, therefore, the law presumes every man undertakes to perform; as if a man employs another to do any business for him, or perform any work, the law implies that the former contracted or undertook to pay the latter as much as his labor41 is worth; see Quantum merwit; or if one takes up goods from a tradesman, without any agreement of price, the law concludes that he contracts to pay their value. 2 Bl. Com. 443. See Quantum valebant; Assumpsit. Com. Dig. Action upon the case upon assumpsit, A 1; Id. Agreement.
11. By the laws of Louisiana, when considered as to the obligation of the parties, contracts are either unilateral or reciprocal. When the party to whom the engagement is made, makes no express agreement on his part, the contract is called unilateral, even in cases where the law attaches certain obligations to his acceptance. Civ. Code of Lo. art. 1758. A loan for use, and a loan of money, are of this kind. Poth. Ob. P. 1, c. 1, s. 1, art. 2. A reciprocal contract is where the parties expressly enter into mutual engagements such as sale, hire, and the like. Id.
12. Contracts, considered in relation to their substance, are either commutative or independent, principal or accessory.
13. Commutative contracts, are those in which what is done, given or promised by one party, is considered as equivalent to, or in consideration of what is done, given or promised by the other. Civ. Code of Lo. art. 17GI.
14. Independent contracts are those in which the mutual acts or proniises have no relation to each other, either as ecluivalents or as considerations. Id. art. 1762.
15. A principal contract is one entered into by both parties, on their accounts, or in the several qualities they assume.
16. An accessory contract is made for assuring the performance of a prior contract, either by the same parties or by others, such as suretyship, mortgage, and pledges. Id. art. 1764. Poth. Obl. p. 1, c. 1, s. 1, art. 2, n. 14.
17. Contracts, considered inrelation to the motive for. making them, are either gratuitous42 or onerous43. To be gratuitous, the object of a contract must be to benefit the person with whom it is made, without any profit or advantage, received or promised, as a consideration for it. It is not, however, the less gratuitous, if it proceed either from gratitude44 for a benefit before received, or from the hope of receiving one hereafter, although such benefits be of a pecuniary45 nature. Id. art. 1766. Any thing given or promised, as a consideration for the engagement or gift; any service, interest, or condition, imposed on what is given or promised, although unequal to it in value, makes a contract onerous in its nature. Id. art. 1767.
18. Considered in relation to their effects, contracts are either certain or hazardous46. A contract is certain, when the thing to be done is supposed to depend on the will of the party, or when, in the usual course of events, it must happen in the manner stipulated47. It is hazardous, when the performan ce.of that which is one of its objects, depends on an uncertain event. Id. art. 1769. 19. Pothier, in his excellent treatise48 on Obligations, p. 1, c. 1, s. 1, art. 2, divides contracts under the five following heads:
20.- 1. Into reciprocal and unilateral.
21. - 2. Into consensual, or those which are formed by the mere31 consent of the parties, such as sale, hiring and mandate49; and those in which it is necessary there should be something more than mere consent, such as loan of money, deposite or pledge, which from their nature require a delivery of the thing, (rei); whence they are called real contracts. See Real Contracts.
22.-3. Into-first, contracts of mutual interest, which are such as are entered into for the reciprocal interest and utility of each of the parties, as sales exchange, partnership50, and the like.
23.-2d. Contracts of beneficence, which are those by which only one of the contracting parties is benefited, as loans, deposit and mandate. 3d. Mixed contracts, which are those by which one of the parties confers a benefit on the other, receiving something of inferior value in return, such as a donation subject to a charge,
24. - 4. Into principal and accessory.
25. - 5. Into those which are subjected by the civil law to certain rules and forms, and those which ate regulated by mere natural justice. See, generally, as to contracts, Bouv. Inst. Index, h. t.; Chitty on Contracts; Comyn on Contracts; Newland on Contracts; Com. Dig. titles Abatement51, E 12, F 8; Admiralty, E 10, 11; Action upon the Case upon Assumpsit; Agreement; Bargain and Sale; Baron52 and Feme, Q; Condition; Dett, A 8, 9; Enfant, B 5; Idiot, D 1 Merchant, E 1; Pleader, 2 W, 11, 43; Trade D 3; War, B 2; Bac. Abr. tit. Agreement; Id. Assumpsit; Condition; Obligation; Vin. Abr. Condition; Contracts and Agreements; Covenants54; Vendor55, Vendee; Supp. to Ves. jr. vol. 2, p. 260, 295, 376, 441; Yelv. 47; 4 Ves. jr., 497, 671; Archb. Civ. Pl. 22; Code Civ. L. 3, tit. 3 to 18; Pothier's Tr. of Obligations Sugden on Vendors56 and Purchasers; Story's excellent treatise on Bailments; Jones on Bailments; Toullier, Droit Civil Francais, tomes 6 et 7; Ham. Parties to Actions, Ch. 1; Chit. Pr. Index, h. t.; and the articles Agreement; Apportionment; Appropriation58; Assent; Assignment; Assumpsit; Attestation59; Bailment57; Bargain and sale; Bidder60; Bilateral61 contract; Bill of Exchange; Buyer; Commodate; Condition; Consensual contract; Conjunctive; Consummation; Construction; Contracto of benevolence62; Covenant53; Cumulative63 contracts; Debt; Deed; Delegation64. Delivery; Discharge Of a contract; Disjunctive; Equity of a redemption; Exchange; Guaranty; Impairing65 the obligation of contracts; Insurance; Interested contracts; Item; Misrepresentation; Mortgage; Mixed contract; Negociorum gestor; Novation; Obligation; Pactum constitutae, pecuniae; Partners; Partnership; Pledge; Promise; Purchaser; Quasi contract; Representatian; Sale; Seller; Settlement; Simple contract; Synallagmatic contract; Subrogation; Title; Unilateral contract.
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