If you are involved in a business agreement, one of the first things to determine is whether the promise or agreement at issue will be considered an enforceable contract under the law. While contracts usually involve promises to do something (or refrain from doing something), not all promises are contracts. How does the law determine which promises are enforceable contracts and which are not?
A written contract is usually pleaded by setting it out in its entirety in the body of the complaint or by attaching a copty. The other method of pleading is by alleging the making of the contract, and then alleging the substance of its relevant terms.
“A written instrument is presumptive evidence of a consideration.” (C.C. 1614.) Therefore, it is not necessary to plead the existence of consideration to support the contract.
If oral, the exact words used can seldom be correctly alleged, and are evidentiary in nature. Hence, the oral contract is pleaded according to its legal effect.
But the complaint is subject to a general demurrer if the allegations fail to show the nature of the contract with certainty.
An implied in fact contract arises from conduct, without express words of agreement. Accordingly, “only the facts from which the promise is implied must be alleged.”
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