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PROMISE TO PERFORM CONTRACT WITH THIRD PERSON,

195

a new and distinct right, which must always be of some value in law, and may be of appreciable value in fact. B. may well be much interested in A.'s performing his contract with C., but yet so that the circumstances which give him an interest in fact do not give him any interest which he can assert in law. The power to claim A.'s performance in his own right will then be valuable to him, and why may he not entitle himself to it by contract, and bind himself to pay for it? This opinion has been expressed and acted on in the Court of Exchequer (a), and seems implied in the judgment of the majority of the Court of Common Pleas in a case decided some weeks earlier (b), which affords a curious modern example of a class of agreements already mentioned as having in former times given rise to much litigation and even to conflicts of jurisdiction. An uncle wrote to his nephew in these terms: "I am glad to hear Shadwell of your intended marriage with E. N.; and as I promised well. to help you at starting I am happy to tell you that I will pay to you one hundred and fifty pounds yearly during my life," subject to a contingency not material to be now stated. The marriage took place, and for several years this annuity was paid; after which it fell into arrear, the uncle died, and the nephew sued his executors. It was pleaded amongst other things that the marriage was not at the testator's request and that there was no consideration for the promise. Erle, C. J. and Keating, J. held (but without saying in terms that the existence of the engagement to marry at the date of the uncle's promise could make no difference) that on the whole the marriage must be taken to have been at the testator's request, and so was a sufficient consideration. Byles, J. dissented, thinking that as no express request appeared, so none could be implied, for

(a) Scotson v. Pegg, 6 H. & N. 295, 30 L. J. Ex. 225. The principle may also be put in this way, that A. binds himself to B. not merely not to break his contract with C., but to forbear the exercise

of an actual right, that of rescind-
ing the contract with C.'s consent:
Anson, p. 81.

(b) Shadwell v. Shadwell, 9 C. B.
N. S. 159, 30 L. J. C. P. 145.

v. Shad.

Rules as to

consideration ex

tended to

the dis

charge of

contracts.

the nephew was already bound to the marriage and the uncle knew it he stated the rule to be that a promise to do what one is already bound, though only to a third person, to do, cannot be a consideration (a); and he seemed disposed to treat it as a matter of public policy. Unless put on that ground, indeed, it would amount, as was pointed out in the Exchequer (b), to saying that a man cannot have an interest in the performance of a contract made with another.

But even if we do regard the rule of law as paramount to the interest of the parties-a view for which it may be said that as a matter of fact an individual citizen might often find it less troublesome to pay a man for performing his legal duty than to take the proper steps for making him perform it-there still appears to be good reason for the distinction. To allow promises to be binding if made in consideration of the promisee doing or undertaking what he is already bound generally or to the promisor to do would be to give direct encouragement to breaches of public and private duty. But where the duty is to a third person only, this reason does not apply; the encouragement to unlawful conduct, if any, is too remote and precarious to count for anything.

The doctrine of Consideration, especially this last part of it, has been extended with not very happy results beyond its proper scope, which is to govern the formation of contracts, and has been made to regulate and restrain the discharge of contracts. For example, where there is a contract of hiring with a stipulation that the wages shall be forfeited in the event of the servant being drunk, a promise not under seal to pay the wages notwithstanding

(a) And so thought some of the judges in Jones v. Waite, 5 Bing. N. C. 341, 351, 356. But the actual decision there (ib., 9 Cl. & F. 101) would be a clear authority the other way, had it not been assumed at the

due

time that an agreement to execute a separation deed could not be directly enforced.

(b) Per Wilde, B. Scotson v. Pegg, supra.

a forfeiture is not binding without a new consideration («). But it is thought unnecessary to enter here on this matter, which the reader will find set forth in the notes to Cumber v. Wane (b). It is still the rule of English law that a debt of 100l. may be perfectly well discharged by the creditor's acceptance of a peppercorn at the same time and place at which the 100l. are payable, or of ten shillings at an earlier day or at another place, but that nothing less than a release under seal will make his acceptance of 997. in money at the same time and place a good discharge (c): although modern decisions have confined this absurdity within the narrowest possible limits (b).

sideration

contracts.

If it is agreed between creditor and debtor that the The conduty shall be performed in some particular way different for variafrom that originally intended, this may well be binding: tion of for the creditor's undertaking to do something different though only in detail from what he at first undertook to do, or even relinquishing an option of doing it in more ways than one, would be consideration enough, and the Court could not go into the question whether it gave any actual advantage to the creditor. But if the new agreement amounts to saying that the debtor shall at his own option perform the duty as at first agreed upon or in some other way, it cannot be binding without a new consideration as where an entire sum is due, and there is an agreement to accept payment by instalments, this would be good, it seems, if the debtor undertook not to tender the whole sum: but in the absence of anything to show such an undertaking, the agreement is a mere voluntary in

(a) Monkman v. Shepherdson, 11 A. & E. 411.

(b) 1 Sm. L. C. 341 sqq., see the existing law summed up, pp. 351 -356.

(c) Pinnel's ca. 5 Co. Rep. 117. The Indian Contract Act (s. 63, illust. b) is accordingly careful to

express the contrary. The rule in
Pinnel's case, it may be noted, though
paradoxical, is not anomalous. It is
the strictly logical result of carrying
out a general principle beyond the
bounds within which it is reasonably
applicable.

Loss or for. bearance

tion.

dulgence, and the creditor remains no less at liberty to demand the whole sum than the debtor is to pay it (a). The loss or abandonment of any right, or the forbearance of rights as to exercise it for a definite or ascertainable time, is for considera obvious reasons as good a consideration as actually doing something. In Mather v. Lord Maidstone (b) the loss of collateral rights by the promisee supported a promise notwithstanding that the main part of the consideration failed. The action was on a bill of exchange. This bill was given and indorsed to the plaintiff as in renewal of another bill purporting to be accepted by the defendant and indorsed to the plaintiff. The plaintiff gave up this first bill to the defendant; thirty days afterwards it was discovered that it was not really signed by the defendant: yet it was held that he was liable on the second bill, for the plaintiff had lost his remedy against the other parties to the first bill during the time for which he had parted with the possession of it, and that was consideration enough.

Forbearance to

be for

As to forbearance, the commonest case of this kind of sue: must consideration is forbearing to sue. The forbearance or promise of it must be, as we said, for a definite or ascerascertain tainable time in order to be a good consideration. Forable time. bearance for a reasonable time is enough, for it can be

definite or

There

ascertained as a question of fact what is a reasonable time in any given case: and an undertaking in terms which are in themselves vague, such as "forbearing to press for immediate payment" may be construed by help of the circumstances and context as meaning forbearance for a reasonable time (c).

That which is forborne must also be the éxercise or must be an enforcement of some legal or equitable right which is at

actual or

(a) McManus v. Bark, L. R. 5 Ex. 65.

(b) 18 C. B. 273, 25 L. J. C. P. 300.

(c) Oldershaw v. King (Ex. Ch.) 2 H. & N. 517, 27 L. J. Ex. 120, and see 1 Wms. Saund. 225. The

case of Alliance Bank v. Broom, 2 Dr. & Sm. 289, which at first sight looks like a decision that a promise to forbear suing for no time in particular is a good consideration, is perhaps to be supported on this ground,

disputed

are bind

least reasonably believed to exist. This is simply the bona fide converse of a rule already given. As a promise by A. to right. B. is naught if it is only a promise to do something A. is already bound, either absolutely or as against B., to do, so it is equally worthless if it is a promise not to do something which B. can already, as a matter either of public or of private right, forbid A. to do. Such is the theoretical expression of the rule, if we assume the existing rights of the parties to be known: but as in practice they often are Why comnot known, but depend on questions of law or of fact, or promises both, which could not be settled without considerable ing. trouble, common sense and convenience require that compromises of doubtful rights should be recognized as binding, and they constantly are so recognized. Unless we chose to treat these as an exception, which would be absurd, the statement must be modified thus-A promise by A. to B. not to do some thing or to prosecute some claim is not a good consideration if A. knows that the thing is one which B. can already forbid him to do, or that the claim has no foundation (a). "Every day a compromise is effected on the ground that the party making it [a doubtful claim] has a chance of succeeding in it, and if he bona fide believes he has a fair chance of success, he has a reasonable ground for suing and his forbearance to sue will constitute a good consideration. When such a person forbears to sue he gives up what he believes to be a right of action and the other party gets an advantage It would be another matter if a person made a claim which he knew to be unfounded and by a compromise derived an advantage under it in that case his conduct would be fraudulent" (b).

This rule applies in the case (which apart from authority might possibly seem doubtful) where the claim given up is on a disputed promise of marriage (c). The real considera

or if

(a) Perhaps we might add " by reasonable diligence he might know" but more probably means of knowledge would only be evidence of actual knowledge. Cp. p. 46,

above.

(b) Callisher v. Bischoffsheim, L. R. 5 Q. B. 449, 452, per Cockburn, C.J. (c) Keenan v. Handley, 2 D. J. S. 283.

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