Definition
A special contract is a term with two distinct but historically layered meanings:
1. (Technical/historical) A contract under seal — that is, a formal written instrument executed with a wax seal or its equivalent, giving it a higher legal status than a simple written or oral agreement. In this sense, "special contract" is synonymous with a specialty or deed, and was governed by different rules as to consideration, limitations periods, and enforceability than simple contracts.
2. (Common usage) An express contract whose terms explicitly and clearly define the rights and obligations of both parties, as distinguished from a contract whose terms must be implied, inferred, or constructed by a court from the parties' conduct. In this sense, a special contract is one that leaves little to implication — the agreement speaks for itself.
The two meanings are connected by a common thread: in both cases, the contract is distinguished from something less formal or less explicit. The first meaning turns on the mode of execution (sealed); the second turns on the clarity and completeness of expressed terms.
Common Confusion
The phrase "special contract" is easily confused with two other categories researchers may encounter:
— Special contract vs. express contract: In the second sense above, "special contract" is essentially synonymous with express contract, and the terms are sometimes used interchangeably in older materials. But not all express contracts would historically have qualified as "special" contracts in the technical (sealed) sense.
— Special contract vs. specialty: In the strict technical sense, a specialty and a special contract (first meaning) are the same thing — a sealed instrument. Researchers will find "specialty" used more consistently in English common law sources, while American sources may use "special contract" more loosely to reach the second meaning.
— Special contract vs. implied contract: The second definition is best understood in contrast to implied contracts, where terms are supplied by law or circumstance rather than stated by the parties.
Why It Matters in Research
This term is a persistent source of confusion in historical legal sources because its meaning shifts depending on era, jurisdiction, and context — sometimes within the same treatise. Researchers working in 19th-century American contract law will encounter both uses, often without explicit signal as to which is intended. The safest approach is to examine surrounding context: if the source is discussing consideration, limitations periods, or execution formalities, the sealed-instrument meaning is likely operative. If the source is comparing the contract to implied or quasi-contractual obligations, the express-terms meaning is in play.
The sealed instrument meaning has largely faded from American practice. Most U.S. jurisdictions have abolished or significantly reduced the legal effect of seals by statute, making the technical distinction between a special contract and a simple contract practically irrelevant in modern transactions. However, researchers working in English law sources, equity cases, or early American common law will find the sealed-instrument meaning controlling, and the different limitations period applicable to specialties (often longer than for simple contracts) can affect analysis of historical disputes.
The second meaning — special contract as explicit, clearly defined agreement — remains functionally relevant as a shorthand for distinguishing express agreements from implied or quasi-contractual relationships. Courts and counsel still use the phrase in this sense, particularly when arguing that the terms of an agreement govern a dispute and leave no room for implied duties or unjust enrichment claims.
Researchers should also be alert to a third, contextual usage that occasionally appears in specialized fields: "special contract" as a term of art for a contract that modifies default rules or common carrier duties (e.g., a bill of lading limiting liability). This usage is distinct from both primary definitions and most prominent in transportation and commercial law contexts.
Historical Dictionary Support
Black's Law Dictionary captures both meanings and correctly identifies the tension between them, noting that "in common usage" the term shifted toward the express-contract sense while retaining its technical sealed-instrument definition. This dual entry is itself useful evidence of the transition underway in American legal vocabulary during the 19th century — the formal distinction between sealed and unsealed instruments was eroding in practice, and "special contract" was being pressed into service to mean simply a well-defined agreement.
Black's entry stops short of resolving which meaning controls in any given context, leaving that determination to the researcher. No guidance is offered on the statutory abolition of seal requirements, which would become a significant development in 20th-century American law. Researchers should treat Black's entry as capturing a transitional moment rather than a settled definition.
Jurisdictional Note
The sealed-instrument meaning of special contract has been largely abolished by statute across American jurisdictions, with most states eliminating or diminishing the legal significance of seals. English and Commonwealth sources retain stronger formal distinctions. In specialized fields such as common carrier law, "special contract" may carry a distinct meaning particular to that regulatory context.
Encyclopedia Cross-Reference
The Law Mind Contracts & Commercial Law Encyclopedia does not contain a direct entry on special contracts in either the technical or general sense. Researchers exploring specialized or formal contract categories may find relevant context in:
— Specialized Contracts — Settlement Agreements and Releases (contracts_216), for express-terms analysis
— Specialized Contracts — Government Contracts (Federal Acquisition Regulation) (contracts_217), for contexts where formal contract requirements remain significant