A family contract is a contract between the members of a family settling the distribution or descent of its estates-illustrates &explain law of contract in regard to family and social matters
In simple words, ‘Contract’ means an agreement. But the definition of contract comprises many broader issues and terms. The scope of ‘Contract’ is even broader. From the legal point of view, a ‘Contract’ is any legally binding agreement voluntarily entered into by two or more parties that places an obligation on each party to do or not do something for one or more of the other parties and that gives each party the right to demand the performance of whatever is promised to them by the other parties. To be valid, all parties must be legally competent to enter a contract, neither the objective nor any of the obligations or promised performances may be illegal, mutuality of the agreement and of its obligations must exist, and there must be consideration1. According to Sir William Anson, “A contract in an arrangement enforceable at law made between two or more person, by which rights are acquired by one or more to act or forbearance on the part of other or others” (as cited in Sen, & Mitra, 2011, p. 13). But in case of business, a contract may be defined as an agreement between two or more parties to exchange goods and/or services that are legally binding in law (The Main Requirements of a Simple Legal Binding Contract – Law of Contract, n.d.). From these definitions we can identify some key features of contract and these are following:
· More than one party involved
· Agreed upon a common interest
· Bound by law
· Any breach of terms in a contract is legally charged etc.
A ‘Contract’ must contain following elements, without which contract is not valid:
1. Offer and Acceptance: One party will offer something and other party will have to accept all the terms and conditions related to it.
2. Intension to create Legal Relation: Contract will create legal obligations between the parties involved.
3. Consideration2: There must a legal consideration in contract. This means that all parties involved must receive consideration or something of value. Otherwise, it is considered a gift rather than a contract. The promise of a gift is not necessarily binding, depending upon the circumstances.
The consideration component of the contract brings up several other provisions that should be addressed. These provisions include:
- Obligations and Conditions of the Contract — what each party needs to do to fulfill the terms of the contract
- Performance — how well each party performs the terms of the contract
- Liabilities — defines the liability of each party in terms of the contract
- Breach of Contract — what will happen should either party fail to fulfill their end of the agreement
4. Capacity of parties: A contract to be valid, parties involved in it must be lawfully worthy to enter into an agreement. An individual or a party will be considered incapable of entering into an agreement if the following problems are present:
· Minority (Under aged. Exp: below 18)
· Mentally challenged
· Drunkenness etc.
5. Free consent: A contract should be based on free consent of all parties. Any contract which is being executed by being forced by any parties will not be considered valid.
6. Legality of Object: The object must be legal for which parties are entering into a contract. For example: If a property is being transferred to another party, the property must be completely free form any legal charges and restriction or embargos.
7. Certainty: All the terms and conditions of contract must be clear and meaningful to the parties involved so that it can be legally enforced.
8. Possibility of performance: A promise to do impossible thing cannot be brought under contract.
9. Void Agreement: An agreement which is not enforceable by law is said to be void. For example: B promises to pay to A a salary of 10,000tk/- in a year. The agreement is void, the consideration for B’s promise, being in part unlawful (KLELC, 2012). Followings are some void agreements:
· Agreements in restraint of trade
· Agreements in restraint of marriage
· Uncertain agreements
· Agreements in restraint of legal proceedings
· Curtailing the period of limitation.
· Wagering agreements.
· Agreement contingent on impossible events
· Agreements to do impossible acts.
· Where no time is specified and no application is to be made (retrieved from http://www.scribd.com/doc/12810853/Void-Agreements)
10. Contract can be written, registered and oral. An oral contract is fine but hard to prove in case of violation. So it is recommended contract over important issues be written and registered even though it’s not mandatory.
Above elements are the basic issues of a contract. For a contract to be valid, all these elements must be present. From the discussion of the above elements it is clear that, every contract binds the parties in it, into some legal obligations which held a party accountable to compensate another in case of contract breach. This also allows us to find the existence of legally binding contracts in family and social matters. This is discussed in the following section.
Legally binding contract in family and social matters
Now that we have discussed the terms and conditions of contract, we can extend this concept to the family and social issues. If we just think about the terms and conditions of a contract that we have discussed earlier, we can easily relate those with many of our family and social affair. Some binding contracts in family and social affair are discussed below
Marriage is an inevitable social affair all over the world. Through this event tow people get together and get social acceptance of sharing their life with each other. At the same time this can be viewed as legal permission to lead life together. So it is also a contract between two people. A marriage agreement/ contract is a legal contact, just like any other type of contract such as the contract you might have with a landlord or a business partner. It’s a written document that summarizes each person’s obligations to the other. Marriage agreements can be between spouses who are already married or people who are planning to marry with the intention that it will take effect on the date of their marriage. A marriage agreement identifies who each of you are and usually makes some statement about the purpose of the agreement. Then it sets out a series of promises that you each make to the other. Marriage agreements are sometimes intended to govern how things will work during a marriage. More often they’re intended to govern how things will work out if the marriage ends, to settle these issues now, in advance of separation, in the hope of avoiding future conflict and litigation. The issues easiest to resolve ahead of time usually involve the division of assets, responsibility for debts and the payment of spousal support.
With or without a written agreement, the law imposes certain obligations on married couples, which you cannot contract out of. Also, some terms will never be enforced by a court, such as a contract about sex, or to remain childless, or to end the marriage after a certain period of time.
An individual and his/her partner can always change or cancel the marriage agreement, providing of course that they both agree to the change. Marriage agreements are changed by making a second written agreement, called an “addendum agreement” or an “amending agreement”, to change or cancel the first agreement. Like the first agreement, a person must sign the new agreement and his/her signatures must be witnessed. A marriage agreement usually deals with financial issues. If trouble comes and your spouse breaks the agreement, you can sue to enforce the agreement, just like any other contract (The Canadian Bar Association, 1983-2010). So we can easily say that, this social affair is a legally binding contract.
A family contract is a contract between the members of a family settling the distribution or descent of its estates. There are many moral as well as legal bindings among family members. For example: A father may will his property to his son. If the father has two children, issue of property distribution arises and along with it many legal obligations occurs. All of these are examples of legally binding contracts.
There can be contract between child and parents. Every child has legal right to get shelter, protection, financial support, safety, clothing etc. from their parents. These are also legally binding contracts.
Contracts in Social matters:
To live in society we face many contracts every day. For example: To live in an apartment we all have to follow certain rules like paying the service charges timely, not engaging in unacceptable occurrence with any dwellers, keeping the surroundings clean, staying out of unnecessary reconstruction of won house which might create problems in other houses etc. Violation of these rules can be legally charged to make sure a better living environment for all the flat dwellers. So this can considered as contract among all the members
From our above discussion we can now say that, there are many issues in our family and social life which are legally binding. We can identify the elements of contract in those issues. So the scope of contract is not confined to the realm of business and law. It is a part of our family and social life as well.
· Webster’s New World Law Dictionary Copyright © 2010 by Wiley Publishing, Inc., Hoboken, New Jersey. Used by arrangement with John Wiley & Sons, Inc.
· Source: <href=”#ixzz2LW5Zy0gX”>http://www.allbusiness.com/legal/contracts-agreements/731-1.html#ixzz2LW5Zy0gX
· KLELC, J.M.M. (2012). VOID AGREEMENTS. SS. 2(G), 23-30, 56. Retrieved from http://www.klelawcollege.org/content/uploads/documents/9.%20Void%20Agreements.pdf
· The Canadian Bar Association (Copyright 1983-2010). Marriage Agreements. Retrieved from http://www.cba.org/bc/public_media/family/162.aspx