gratuitous agreement or declaration of uses without any transfer of legal possession was ineffectual to create a use even if made by deed: and the Statute executes a legal estate only where before the Statute there would have been a use enforceable in equity. In the result the Court held that the covenant was effectual to transfer the use, natural love and affection being a sufficient consideration to support it. It does not appear whether they were prepared to go the whole length of the argument for the defendants and hold natural love and affection a good consideration for contracts of all sorts.

of the doc

equity.

As is well shown by this case, the question of Considera- True origin tion was of importance in the learning of Uses before the trine perstatute (a). And the reflection is obvious that both the haps in general conception and the name of Consideration may well have had their origin in the Court of Chancery and the law of uses, and have been thence imported into the law of contracts rather than developed by the common law courts. On this hypothesis (which however is not offered with any confidence (b)) the connexion with the Roman causa would if anything be more likely than on the other. A more complete search than we have been able to make might perhaps be rewarded by the discovery of positive evidence on this point.

doctrine in

times.

It was the work of a long time to settle the doctrine in Fluctua all points as we now have it. A curious illustration of the tions in the extent to which it was left open even in the last century modern is furnished by Pillans v. Van Mierop (c). The actual Pillans v. decision was on the very sound principle (characteristic, as Van Miewe have seen, of our law) that "any damage to another or suspension or forbearance of his right is a foundation for his undertaking and will make it binding, though no actual benefit accrues to the party undertaking" (d). But Lord

(a) Only the precautions long embodied in the practice of conveyancers prevent it from being so still.

(b) A different one has been put forward by Mr. O. W. Holmes, junr.,

in his book on "The Common Law"
(Boston, 1881), and deserves careful
attention. See Introduction.
(c) 3 Burr. 1664. (A.D. 1765.)
(d) Per Yates, J. at p. 1674.

rop.

Promises founded

on moral

duty:

supposed binding

Mansfield threw out the suggestion (which Wilmot, J.
showed himself inclined to follow, though not wholly com-
mitting himself to it) that there is no reason why agree-
ments in writing, at all events in commercial affairs, should
not be good without any consideration. "A nudum pactum
does not exist in the usage and law of merchants. I take
it that the ancient notion about the want of consideration
was for the sake of evidence only
in commercial
cases amongst merchants the want of consideration is not
an objection" (a). It is true that this was and has re-
mained a solitary dictum barren of results; its anomalous
character was rightly seen at the time and it has never
been followed (b); but the fact that such an opinion could
be expressed at all from the bench is sufficiently striking.
This suggestion of setting up a new class of Formal Con-
tracts (for such would have been the effect) came, as it was,
too late to have any practical influence. But if it had
occurred a century or at any rate two centuries earlier to
a judge of anything like Lord Mansfield's authority, the
whole modern development of the English law of contract
might have been changed, and its principles might have
been (with only minute theoretical differences) assimilated
to those of the law of Scotland.

Another point of great importance remained open even in practice down to a much later time. The anomalous doctrine that the existence of a previous moral obligation is enough to support an express promise was held by till eminent judges a few generations back, and was overruled v. Kenyon. only in 1840 by the decision of the Exchequer Chamber that "a mere moral obligation arising from a past benefit not conferred at the request of the defendant" is not a Past con- good consideration (c). A question still not free from un

Eastwood

sideration

ineffectual.

(a) 3 Burr. 1669-70.

() In 1778 it was distinctly contradicted by the opinion of the Judges delivered to the House of Lords in Rann v. Hughes, 7 T. R. 350, n: "All contracts are, by the laws of England, distinguished into agree

ments by specialty and agreements by parol; nor is there any such third class, as some of the counsel have endeavoured to maintain, as contracts in writing."

(c) Eastwood v. Kenyon, 11 A. & E. 438, 446.

excep

v. Brath

certainty is whether a past benefit is in any case a good consideration for a subsequent promise. On principle it should not be. For the past service was either rendered without the promisor's consent at the time, or with his consent but without any intention of claiming a reward as of right, in neither of which cases is there any foundation. for a contract (); or it was rendered with the promisor's consent and with an expectation known to him of reward as justly due, in which case there were at once all the elements of an agreement for reasonable reward. It is Supposed said, however, that services rendered on request, no definite tions: promise of reward being made at the time, are a good con- Lampleigh sideration for a subsequent express promise in which the wait. reward is for the first time defined. But there is no satisfactory modern instance of this doctrine, and it would perhaps now be held that the subsequent promise is only evidence of what the parties thought the service worth (b). It is also said that the voluntary doing by one party of Perform something which the other was legally bound to do is a another's good consideration for a subsequent promise of recompense, legal duty. But the authority for this proposition is likewise found to be unsatisfactory. Not only is it scanty in quantity, but the decisions, so far as they did not proceed on the now exploded ground that moral obligation is a sufficient consideration, appear to rest on facts establishing an actual tacit contract independent of any subsequent promise.

ance of

Another exceptional or apparently exceptional case Acknow

(a) "It is not reasonable that one man should do another a kindness, and then charge him with a recompense." 1 Wms. Saund. 356.

(b) Lampleigh v. Brathwait, Hob. 105, and 1 Sm. L. C.; see per Erle, C. J., 13 C. B. N. S. at p. 740. The case of Bradford v. Roulston, decided by the Irish Court of Exchequer in 1858, will, for English lawyers at least, hardly outweigh this dictum. At an earlier time there was a dif

ledgment of barred

ference between debt and assumpsit debts.
in this respect it was held that a
past consideration would not sup-
port an action of debt, but (on the
theory that in assumpsit the con-
tractual relation of the parties was
not the cause of action, but only a
sort of inducement of it) that it was
enough for assumpsit. Marsh v.
Rainsford, 2 Leon. 111, Sidenham v.
Worlington, ib. 224; O. W. Holmes,
The Common Law, 286, 297.

which certainly exists is that of a debt barred by the Statute of Limitation, on which the remedy may be The restored by a new promise on the debtor's part. theory is that the legal remedy is lost but the debt is not destroyed, and the debt subsisting in this dormant condition is a good consideration for a new promise to pay it. This is not logically satisfying, for obviously there is no real equivalent for the new promise, and the only motive that can generally be assigned for it is the feeling that it would be morally wrong not to pay. It would be better to say at once that the law of limitation does not belong to substantive law at all, but is a special rule of procedure made in favour of the debtor, who may waive its protection if he deliberately chooses to do so (u).

Historically the truth of the matter seems to be that suitors and judges have made attempts in various directions to strain legal principle for the purpose of making people fulfil promises or pay for services which could not easily be said to have been really contracted for, but which also represented benefits they were never intended to have for nothing. These attempts were in part favoured by the confused and fictitious manner in which all quasicontractual transactions were treated; request, consideration, and promise having become, instead of the names of real facts, counters for pleaders to play with. In many The cases the enterprise failed, in some it succeeded. residue of successes appears in a few anomalous rules still laid down by the text-writers (b).

The Indian Contract Act (s. 25) (c) has not only pre

(a) See more on this point in Ch. XII.

(b) I am unable either to give any good reason for omitting this topic of past consideration in former editions, or to add anything of substance to the excellent discussion of it by Sir W. R. Anson (Principles of the English Law of Contract, 85-95).

(c) An agreement made without consideration is void, unless

(1) It is expressed in writing and registered under the law for the time being in force for the registration of assurances, and is made on account of natural love and affection between parties standing in a near relation to each other; or unless

(2) It is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally comp -llable

served but extended the rules of English law as to the validity of promises to give a recompense for benefits already received. But it has rightly discarded the fiction of a past consideration, and treats these rules as positive. exceptions to the principle that an agreement made without consideration is void. It keeps, however, the doubtful doctrine that a consideration executed on actual request will support a subsequent express promise (s. 2, subs. d).

of con

It is a corollary from the rule above shown (pp. 181, 183) Adequacy to be a distinguishing mark of English jurisprudence that sideration the amount of the consideration is not material. "The value not inof all things contracted for is measured by the appetite of into. the contractors, and therefore the just value is that which they be contented to give” (a).

66

When a thing is to

It is accordingly treated as an "elementary principle that the law will not enter into an inquiry as to the adequacy of the consideration" (b). This is of long standing, and illustrated by many cases. be done by the plaintiff, be it never so small, this is a sufficient consideration to ground an action" (c). “A. is possessed of Blackacre, to which B. has no manner of right, and A. desires B. to release him all his right to Blackacre, and promises him in consideration thereof to pay him so much money; surely this is a good consideration and a good promise, for it puts B. to the trouble of making a release" (d). The following are modern examples. If a man who owns two boilers allows another to weigh them, this is a good consideration for that other's promise to give

to do; or unless

(3) It is a promise made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.

In any of these cases, such an

agreement is a contract.

(a) Hobbes, Leviathan, pt. 1.

c. 15.

(b) Westlake v. Adams, 5 C. B. N. S. 248, 265, 24 L. J. C. P. 271, per Byles, J.

(c) Sturlyn v. Albany, Cro. Eliz. 67, and see Cro. Car. 70, and marginal references there.

(d) Holt, C. J. 12 Mod. 459.

quired