ration. The argument for the defendants is long and desultory and goes into much irrelevant matter about Aristotle, the utility of marriage, and the Law of Nature: and the notion is brought in that the consideration for a promise must show some apparent benefit to the promisor: it is said that a promise to pay money in consideration of marriage, such as above mentioned, would be nudum pactum but for regard to Nature (a). It is also said that every deed imports a consideration, viz. the will of him that made it. But this seems a desperate argument. For it must be remembered that the common law rule of a deed wanting no consideration at all was inapplicable (b). Before the Statute of Uses a merely 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.

As is well shown by this case, the question of Consideration was of importance in the learning of Uses before the statute, (and there is nothing but the precautions embodied in the settled practice of conveyancers to prevent it from being so now, as indeed it might still be, in spite of those precautions, in exTrue origin ceptional cases). And the reflection is obvious that both the of the doc- general conception and the name of Consideration may well have trine perhaps in had their origin in the Court of Chancery and the law of Uses, equity. and have been thence imported into the law of contracts rather than developed by the common law courts. On this hypothesis 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.

(a) It is curious that the case was argued on principle without any reference to precedents in the Court of Chancery. It can scarcely have been of the first impression.

(b) The passage is cited in some modern books as an illustration of or authority for that rule, but manifestly per incuriam.

tions in the

times.

Van Mie

rop.

It was the work of a very long time to settle the doctrine in Fluctua all points as we now have it. A curious illustration of the doctrine in extent to which it was left open even in the last century is modern furnished by Pillans v. Van Mierop (a). The actual decision Pillans v. was on the very sound principle (characteristic, as we 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" (b). But Lord Mansfield threw out the suggestion (which Wilmot, J. showed himself inclined to follow, though not wholly committing himself to it) that there is no reason why agreements 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 commercial cases amongst merchants the want of consideration is not an objection" (c). It is true that this was and has remained a solitary dictum barren of results; its anomalous character was rightly seen at the time and it has never been followed; 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 Contracts (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.

in

moral

At least one other point of great importance remained open Promises even in practice down to a much later time. The anomalous founded on doctrine that the existence of a previous moral obligation is duty: enough to support an express promise was held by eminent supposed binding till judges a few generations back, and was overruled only in 1840 Eastwood by the decision of the Exchequer Chamber that " a mere moral v. Kenyon.

(a) 3 Burr. 1664.

(c) 3 Burr. 1669-70.

(b) Per Yates, J. at p. 1674.

Adequacy

of con

not in

quired into.

obligation arising from a past benefit not conferred at the request of the defendant" is not a good consideration (a).

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

It is accordingly treated as an "elementary principle that the sideration law will not enter into an inquiry as to the adequacy of the consideration" (c). This is of long standing, and illustrated by many cases. "When a thing is to be done by the plaintiff, be it never so small, this is a sufficient consideration to ground an action" (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 them up after such weighing in as good condition as before. "The defendant" said Lord Denman "had some reason for wishing to weigh the boilers, and he could do so only by obtaining permission from the plaintiff, which he did obtain by promising to return them in good condition. We need not inquire what benefit he expected to derive" (e). So parting with the possession of a document, though it had not the value the parties supposed it to have (ƒ), and the execution of a deed (g), though invalid for want of statutory requisites (c), have been held good considerations. In the last mentioned case the justice of the decision was very plain the deed was an apprenticeship indenture which omitted to set forth particulars required by a statute of Anne now repealed (h): the apprentice had in fact served his time, so that the benefit of the consideration had been fully enjoyed. In like

:

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

(b) Hobbes, Leviathan, pt. 1. c. 15.

(c) Westlake v. Adams, 5 C. B. N. S. 248, 265, 27 L. J. C. P. 271, per Byles, J.

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

(e) Bainbridge v. Firmstone, 8 A. & E. 743.

(f) Haigh v. Brooks (Q. B. and Ex. Ch.), 10 A. & E. 309, 320, 334. Or letting the promisor retain possession of a document to which the promisee is entitled: Hart v. Miles, 4 C. B. N. S. 371, 27 L. J. C. P. 218.

(g) Cp. Jones v. Waite, 9 Cl. and F. 101.

(h) 8 Ann. c. 5 (9 in Ruffh.) rep. Inland Revenue Repeal Act 1870, 33 & 34 Vict. c. 99.

manner a licence by a patentee to use the patented invention is a good consideration though the patent should turn out to be invalid (a). In a late case in the Supreme Court of the United States a release of a supposed right of dower, which the parties thought necessary to confirm a title, was held a good consideration for a promissory note (b). Decided cases in equity to the Same rule in equity. same effect are not wanting. It has been held that a transfer of railway shares on which nothing has been paid is a good consideration (c); and that if a person indebted to a testator's estate pays the probate and legacy duty on the amount of the debt, this is a good consideration for a release of the debt by the residuary legatees (d): a strong case, for this view was an afterthought to support a transaction which was in origin and intention certainly gratuitous, and in substance an incomplete voluntary release; the payment was simply by way of indemnity, it being thought not right that the debtor should both take his debt out of the estate and leave the estate to pay duty on it. The consent of liquidators in a voluntary winding-up to a transfer of shares is a good consideration for a guaranty by the transferor for the payment of the calls to become due from the transferee (e). An agreement to continue-i.e. not to determine immediately an existing service terminable at will, is likewise a good consideration (f). The principle of all these cases may be summed up in the statement made in so many words by the judges in more than one of them, that the promisor has got all that he bargained for. There has been another rather peculiar case in equity which was to this effect. An agreement is made between a creditor, principal debtor, and surety under a continuing guaranty, by which no new undertaking is imposed on the surety, but additional remedies are given to the creditor, which he is to enforce if requested to do so by the surety. Held that if by his own negligence the creditor deprives himself of the benefit of these remedies, the surety is discharged. The real meaning of what

(a) Lawes v. Purser, 26 L. J. Q. B. 25.

(b) Sykes v. Chadwick, 18 Wallace 141.

(c) Cheale v. Kenward, 3 De G. & J. 27.

(d) Taylor v. Manners, 1 Ch. 18,

by Turner, L. J. dub. Knight Bruce
L. J.

(e) Cleve v. Financial Corpora-
tion, 16 Eq. 363, 375.

(f) Gravely v. Barnard, 18 Eq.

518.

tion may be contingent.

is there said about consideration seems to be that as between the Considera- creditor and the surety it is not material (a). Closely connected in principle with the foregoing class of cases, though not identical with them, is the rule that the consideration for a promise may well be contingent, that is, it may consist in the doing of something by the promisee which he need not do unless he chooses, but which being done by him the contract is complete and the promise binding. If a tradesman agrees to supply on certain terms such goods as a customer may order during a future period, he cannot sue the customer for not ordering any goods, but if the customer does order any the condition is fulfilled, the consideration is perfected, and there is a complete contract which the seller is bound to perform (b).

Inade

see chap.

Inadequacy of consideration coupled with other things may quacy plus however be of great importance as evidence of fraud, &c., when other things in Equity: the validity of a contract is in dispute: and it has been considered (though, it is believed, the better opinion is otherwise) to be of itself sufficient ground for refusing specific performance. This subject, which is by no means free from difficulty, will be examined under the head of Undue Influence, Ch. XI., post.

XI.

of rule.

Reciprocal Reciprocal promises may be and in practice constantly are the promise as considera- consideration for one another, and so constitute a binding contion. Must tract. It is said that in order to be a good consideration a be possible: qu. extent promise must be a promise to do something which the promisor has the means of performing; but this proposition, though affirmed by an authority little short of judicial (c), seems unwarrantably wide. The true limitation, it is submitted, is that the thing promised must be in itself possible, and such as the promisor is legally competent to perform; this last point is what the cases cited for the general statement really go to show, though certainly there are some dicta much more largely expressed (d).)

(a) Watson v. Allcock, 4 D. M. G. 242. The guaranty was determinable by notice from the surety, and it was suggested by way of supplying a new consideration that on the faith of the creditor's increased remedy the surety might in fact have abstained from determining it. But surely this will not do the

true ground is the creditor's original duty to the surety, which covers subsequently acquired rights and remedies.

(b) G. N. Ry. Co. v. Witham, L. R. 9 C. P. 16. Contra a recent case in New York (Benjamin on Sale, 55). (c) 2 Wms. Saund. 430. (d) Haslam v. Sherwood, 10 Bing.