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COVENANT
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COVENANT , in See also:law, is the See also:English See also:equivalent of the See also:Lat. conventio, which, although not technical, was the most See also:general word in See also:Roman law for " agreement." It was frequently used along with pactum, also a general See also:term, but applied especially to agreements to See also:settle a question without carrying it before the courts of law. The word " covenant " has been used in a variety of senses in English law. 1. In its strict sense, covenant means an agreement under See also:seal, that something has or has not already been done, or shall or shall not be done hereafter (Shep. Touchstone, 16o, 162). It is most commonly used with reference to sales or leases of See also:land, but is sometimes applied to any promise or stipulation, whether under seal or not. The See also:person who makes, and is See also:bound to perform, the promise or stipulation is the covenantor: the person in whose favour it is made is the covenantee. 2. Covenants have been subdivided into numerous classes, only a few of which need to be described. It is unnecessary to do more than mention affirmative and negative covenants, See also:joint or several, alternative or disjunctive covenants, dependent or See also:independent covenants. As to See also:collateral covenants, covenants "See also:running with the land," and covenants in leases (including "usual," "proper " and "restrictive" covenants), see LAND-See also:LORD AND See also:TENANT. But there are other classes as to which something must be said. A covenant is said to be See also:express when it is created by the express words of the parties to the See also:deed declaratory of their intention. It is not indispensable that the word " covenant " should be used. Any word which clearly indicates the intention of the parties to covenant will suffice. An implied covenant, or covenant in law, " depends for its existence on the intendment and construction of law. There are some words which of them-selves do not import an express covenant, yet, being made use of in certain contracts, have a similar operation and are called covenants in law; and they are as effectually binding on the parties as if expressed in the most unequivocal terms " (See also:Platt on Covenants, p. 40). Thus, the word "See also:demise," used in a See also:lease of deed, raises the implication of a covenant both for "quiet enjoyment" and for See also:title to let; and it has been judicially suggested that a covenant for quiet enjoyment may be implied from any word or words of like import (Budd-See also:Scott v. See also:Daniell, 1902, 2 K.B. p. 359). The See also:Conveyancing See also:Act 1881 provides (§ 7) that in a See also:conveyance for valuable See also:consideration, other than a See also:mortgage, there shall be implied, as against the person who conveys and is expressed to convey as " beneficial owner," certain qualified covenants—i.e. covenants extending only to the acts or omissions of the vendor, persons through whom he derives title otherwise than by See also:purchase for value, and persons claiming under them—for "right to convey," "quiet enjoyment," "freedom from incumbrances" and "further assurance." Of these statutory covenants for title the only one which requires explanation is the covenant for further assurance. It imports an agreement on the See also:part of the covenantor to do such reasonable acts, in addition to those already performed, as may be necessaryfor the completion of the See also:transfer made (or intended to be made) at the requirements of the covenantee (Platt on Covenants, p.341). All these statutory implied covenants "run with the land" (see LANDLORD AND TENANT). Where a mortgagor conveys and is expressed to convey, as " beneficial owner," there are implied See also:absolute covenants—i.e. covenants amounting to a See also:warranty against and for the acts and` omissions of the whole world—that he has a right to convey, that the mortgagee shall have quiet enjoyment of the See also:property after See also:default, See also:free from incumbrances and for further assurance. See also:Special provisions as to implied covenants by the lessor in leases are made in See also:England by § 7 (B) of the Conveyancing Act 1881 and in See also:Ireland by the Land Act (Ireland) 186o, § 41. The distinction between real and See also:personal covenants is that the former do, while the latter do not, run with the land. An inherent covenant is another name for a real covenant (Shep. Touchstone, 176; Platt, 6o). When a covenant relates to an act already done, it is usually termed a covenant executed; where the performance is future, the covenant is termed executory. The covenant for See also:seisin was an assurance to the grantee that the grantor had the See also:estate which he purported to convey. In England it is now included in the covenant for right to convey; but is still in See also:separate use in several states in See also:America. The covenant to stand seised to uses was an assurance by means of which, under the See also:Statute of Uses [15361 (see UsES), a conveyance of an estate might be effected. When such a covenant is made, the legal estate in the land passes at once to the covenantee under the statute. The consideration for the covenant must be relationship by See also:blood or See also:marriage. It is still occasionally though very rarely employed. The covenant not to See also:sue belongs to the law of See also:contract and needs no explantion.
Most of the classes of covenants above mentioned are in use in the See also:United States. In New See also:York, See also:Michigan, See also:Minnesota, See also:Oregon, See also:Wisconsin and See also:Wyoming the implication of covenants for title has been, with certain exceptions, prohibited by statute. In See also:Alabama, See also:Arkansas, See also:Delaware, See also:Illinois, See also:Indiana, See also:Mississippi, See also:Missouri, See also:Montana, See also:Nevada, New See also:Mexico, See also:Pennsylvania and See also:Texas the words See also: But this remedy had fallen into disuse before 183o (see Platt on Covenants, p. 543), and was abolished by the Common Law See also:Procedure Acts. Since the Judicature Acts, an action on a covenant follows the same course as, and is indistinguishable from, any See also:ordinary action for See also:breach of contract. The remedy is by See also:damages, See also:decree of specific performance or See also:injunction to prevent the breach. The term " covenant " is unknown to Scots law. But its See also:place is filled to some extent by the See also:doctrine of " warrandice." Many of the See also:British colonies have legislated, as to the implication of covenants for title, on the lines of the English Conveyancing Act 1881; e.g. See also:Tasmania, Conveyancing and Law of Property Act 1884 (47 Viet. No. 1o).
As to covenants in See also:restraint of See also:trade see RESTRAINT. AUTHORITIES.—In addition to the authorities cited in the See also:text see: English Law; Goodeve, Law of Real Property (5th ed., See also:London, 1906) ; C. Foa, Landlord and Tenant (3rd ed., London, 1901) ; See also: See also:American Law: Rawle, Law of Covenants for Title (See also:Boston, 1887) ; See also:Encyclopaedia of American. Law (3rd ed., 1890), vol. viii., tit. " Covenants." (A. W. Additional information and CommentsThere are no comments yet for this article.
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