nudum pactum


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nudum pactum

‘a naked agreement’, an agreement where there is no CONSIDERATION. Unenforceable, generally, in English law and originally so in Roman law. The influence of the canon law and the maxim pacta sunt servanda means that such agreements are enforceable in many jurisdictions, notably in Scotland.

NUDUM PACTUM, contracts. A contract made without a consideration,; it is called a nude or naked contract, because it is not clothed with the consideration required by law, in order to give an action. 3 McLean, 330; 2 Denio, 403; 6 Iredell, 480; 1 Strobh. 329; 1 Kelly, 294; 1 Dougl. Mich. R. 188.
     2. There are some contracts which, in consequence of their forms, import a consideration, as sealed instruments, and bills of exchange, and promissory notes, which are generally good although no consideration appears.
     3. A nudum pactum may be avoided, and is not binding.
     4. Whether the agreement be verbal or in writing, it is still a nude pact. This has been decided in England, 7 T. R. 350, note; 7 Bro. P. C. 550; and in this country; 4 John. R. 235; 5 Mass. R. 301, 392; 2 Day's R. 22. But if the contract be under seal, it is valid. 2 B. & A. 551. It is a rule that no action can be maintained on a naked contract; ex nudo pacto non oritur actio: 2 Bl. Com. 445; 16 Vin. Ab. 16.
     5. This term is borrowed from the civil law, and the rule which decides upon the nullity of its effects, yet the common law has not; in any degree been influenced by the notions of the civil law, in defining what constitutes a nudum pactum. Dig. 19, 5, 5. See on this subject a learned note in Fonb. Eq. 335, and 2 Kent, Com. 364. Toullier defines nudum pactum to be an agreement not executed by one of the parties, tom. 6, n. 13, page 10. Vide 16 Vin. Ab. 16; 1 Supp. to Ves. jr. 514; 3 Kent, Com. 364; 1 it. Pr. 113; 8 Ala. 131; and art. Consideration.