Is a Contract Necessary to Create an Effective Escrow?

WHERE land has been sold and both parties are desirous of protecting themselves pending full payment of the purchase price, there are two common ways of accomplishing their purpose without any change in legal ownership. There may be (1) a contract of sale properly evidenced so as to be enforceable, and (2) a deed executed by the vendor and placed "in escrow." Sometimes one method is preferred, sometimes the other. If the former is adopted, it is, of course, vitally important that the contract comply with the formal requirements of the law; in the latter there has been some difference of opinion as to the necessity for such contract. Quite a number of courts and text writers in this country have held or said that a binding, effective escrow necessitates a contract pursuant to which the instrument is deposited.

A few courts have held that not only must there be a contract but it must be enforceable. It is the purpose of this paper to examine into the soundness of these doctrines.