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.