RECIPROCAL PROMISES. In this form the proposition is completely covered by the general law touching impossible and unlawful agreements, and we know of nothing that requires us to lay down any wider rule as part of the distinct learning of Consideration. There is certainly no general rule that a promise cannot be sued on unless the promisor had in fact the means of performing it when he made it; and if we say that the undertaking of a legal liability is not to be deemed a consideration unless the liability be substantial, we are in truth setting up in another shape the often exploded supposition that the adequacy of the consideration can be inquired into. enforce 157 It is certain however that, a promise which is to be a good Must be consideration for a reciprocal promise must be such as can be able. enforced it must therefore be not only lawful and in itself possible, but reasonably definite. Thus a promise by a son to his father to leave off making complaints of the father's conduct in family affairs is no good consideration to support an accord and satisfaction, for it is too vague to be enforced (a). And upon a conveyance of real estate without any pecuniary consideration a covenant by the grantee to build on the land granted such a dwelling-house as he or his heirs shall think proper is too vague to save the conveyance from being voluntary within 27 Eliz. c. 4 (b). bound For the same reason, neither the promise to do a thing nor Must not be of a the actual doing of it will be a good consideration if it is a thing one thing which the party is already bound to do either by the is already general law or by a subsisting contract with the other party (c). generally It is obvious that an express promise by A. to B. to do some- or to the thing which B. can already call on him to do can (at any rate in promisee contemplation of law) produce no fresh advantage to B. or detriment to A. But the doing or undertaking of anything beyond what one is already bound to do, though of the same kind and in 540, Nerot v. Wallace, 3 T. R. 17, where the dicta of Lord Kenyon C. J. and Ashurst, J. are those meant in the text. Buller and Grose, JJ. confined their judgments to the true ground of the case, viz. that the agreement then in question was illegal as being against the policy of the bankrupt laws. (a) White v. Bluett, 23 L. J. Ex. 36 this seems the ratio decidendi, though so expressed only by Parke, B. who asked in the course of argu- (b) Rosher v. Williams, 20 Eq. 210. to do. But may be of a thing one is bound to a third person to do. the same transaction, is a good consideration. A promise of reward to a constable for rendering services beyond his ordinary duty in the discovery of an offender is binding (a): so is a promise of extra pay to a ship's crew for continuing a voyage after the number of hands has been so reduced by accident as to make the voyage unsafe, so that the crew are not bound to proceed under their original articles (b). Again there will be consideration enough for the promise if an existing right is altered or increased remedies given. Thus an agreement to give a debtor time in consideration of his paying the same interest that the debt already carries is inoperative, but an agreement to give time or accept reduced interest in consideration of having some new security would be good and binding. The common proviso in mortgages for reduction of interest on punctual paymenti.e. payment at the very time at which the mortgagor has covenanted to pay it seems to be without any consideration, and it is conceived that if not under seal such a proviso could not be enforced (c). Again the rule does not apply if the promise is in the nature of a compromise, that is if a reasonable doubt exists at the time whether the thing promised be already otherwise due or not, though it should be afterwards ascertained that it was so. The reason of this will be more conveniently explained, so far as it needs explanation, when we speak presently of forbearance as a Consideration. In the case where the party is already bound to do the same thing, but only by contract with a third person, there is some difference of opinion. But there seems to be no solid reason why the promise should not be good in itself, and therefore a good consideration. It creates a new and distinct right, which must always be of some value in law, and may be of appreciable value in fact. There are many ways in which B. may be very 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. It may well be worth his while to give some (a) England v. Davidson, 11 A. & E. 856. (b) Hartley v. Ponsonby, 7 E. & B. 872, 26 L. J. Q. B. 322. (c) This could be at once pro vided against, however, if so desired, by simply fixing the times for "punctual payment" a single day earlier than those named in the mortgagor's covenant. thing for being enabled to insist in his own right on the thing being done. 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 the conflicts of jurisdiction. An uncle wrote to his nephew in these terms: "I am Shadwell r. glad to hear of your intended marriage with E. N.; and as I Shadwell. promised 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 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 (c); 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 (), to saying that a man cannot have an interest in the performance of a contract made with another. But even if we do regard it as a rule of law 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 (a) Scotson v. Pegg, 6 H. & N. 295, 30 L. J. Ex. 225. (b) Shadwell v. Shadwell, 9 C. B. N. S. 159, 30 L. J. C. P. 145. (c) 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 (d) Per Wilde, B. Scotson v. PeJJ, supra. Rules as to tion ex tended 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, considera- has been extended with not very happy results beyond its proper scope, which is to govern the formation of contracts, and has the disbeen made to regulate and restrain the discharge of contracts. charge of contracts. For example, where there is a contract of hiring with a stipulation that the wages due shall be forfeited in the event of the servant being drunk, a promise not under seal to pay the wages notwithstanding a forfeiture is not binding without a new consideration (a). 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 enough to say that English common law stands committed to the absurd paradox that a debt of £100 may be perfectly well discharged by the creditor's acceptance of a peppercorn at the same time and place at which the £100 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 £99 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). The con for varia tion of If it is agreed between creditor and debtor that the duty shall sideration be performed in some particular way different from that originally intended, this may well be binding: for the creditor's undercontracts. taking 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 (a) Monkman v. Shepherdson, 11 A. & E. 411. (b) 2 Sm. L. C. 302 sqq., see the existing law summed up, pp. 310-313. (c) Pinnel's ca. 5 Co. Rep. 117. The Indian Contract Act (s. 63, illust. b) is accordingly careful to express the contrary. 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 payments 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 indulgence, and the creditor remains no less at liberty to demand the whole sum than the debtor is to pay it (a). bearance tion. The loss or abandonment of any right, or the forbearance to Loss or forexercise it for a definite or ascertainable time, is for obvious of rights as reasons as good a consideration as actually doing something. In consideraMather 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. ance to sue: must be for ascertainable time. As to forbearance, the commonest case of this kind of con- Forbearsideration is forbearing to sue. The forbearance or promise of it must be, as we said, for a definite or ascertainable time in definite or order to be a good consideration. Forbearance for a reasonable time is enough, for it can be ascertained by the verdict of a jury 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). It is submitted that the case of (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. M |