There actual or bona fide disputed right. Alliance Bank v. Broom (a), 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. That which is forborne must also be the exercise or enforce must be an ment of some legal or equitable right which is at least reasonably believed to exist (b). This is simply the converse of a rule already given. As a promise by A. to 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. At least this would be the theoretical expression of the rule, assuming Why com- the existing rights of the parties to be known: but as in practice promises are bind- they often are not known, but depend on questions of law or of ing. fact, or both, which could not be settled without considerable 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. One might be tempted to add, or if by reasonable diligence he might know: but probably this would not be correct, and here as in certain other analogous questions the existence of means of knowledge is material only as evidence of actual knowledge. "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" (c). (a) 2 Dr. & Sm. 289. (c) Callisher v. Bischoffsheim, L. R. 5 Q. B. 449, 452, per Cockburn, C. J. 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 (a). The real consideration and motive of a compromise, as well in our law as in the civil law and systems derived from it, is not the sacrifice of a right but the abandonment of a claim (b). A partial compromise in which the undertaking is not simply to stay or not to commence legal proceedings, but to conduct them in some particular manner or limit them to some particular object, may well be good but here again the forbearance must relate to something within the proper scope of such proceedings. A promise to conduct proceedings in bankruptcy so as to injure the debtor's credit as little as possible is no consideration, for it is in truth merely a promise not to abuse the process of the Court (c). neral doc Considera tion on under seal. The main end and use of the doctrine of Consideration in our Reaction modern law, whatever may have been its precise origin, is to of the gefurnish us with a reasonable and comprehensive set of rules trine of which can be applied to all informal contracts without distinction of their character or subject-matter. Formal contracts remain, contracts strictly speaking, outside the scope of these rules, which were not made for them, and for whose help they had no need. But it was impossible that so general and so useful a legal conception as that of Consideration should not make its way into the treatment of formal contracts, though with a different aspect. The ancient validity of formal contracts could not be amplified, but it might be restrained and in fact both the case-law and the legislation of modern times shew a marked tendency to cut short if not to abolish their distinctive privileges, and to extend to them as much as possible the free and rational treatment of legal questions which has been developed in modern times by the full recognition of informal transactions. There is some reason, as we have seen, to believe that the Most conspicuous in doctrine of Consideration owes its origin to the Court of Equity. Chancery and we must still look to courts of equity to see it in its fullest application. A merely gratuitous contract under seal (a) Keenan v. Handley, 2 D. J. S. 283. (b) Trigge v. Lavallée, 15 Moo. P. C. 271, 292 (a case from Lower Canada, then under old Fr. law). may be enforced at law (with some peculiar exceptions) unless it can be shown that behind the apparently gratuitous obligation there is in fact an unlawful or immoral consideration: and with its strictly legal effect, in the absence of any special ground of invalidity, the rules of equity do not profess to interfere. No specific But courts of equity refuse to extend their special protection perfor mance of and their special remedies to agreements, however solemn and voluntary formal, made without consideration. agreement though by deed. But exist. ence of considera A voluntary covenant, though under seal, "in equity, where at least the covenantor is living, or where specific performance of such a covenant is sought, . . stands scarcely, or not at all, on a better footing than if it were contained in an instrument unsealed" (a). Even the first part of our statement must be taken with a qualification of some importance to which allusion is made in the passage just cited. Equity does admit in theory that a voluntary contract is not impeachable merely for being voluntary: but we shall see under the head of Undue Influence that a system of presumptions has been established which makes it exceedingly difficult in many if not in most cases for persons claiming under a voluntary deed to uphold its validity if the donor, or even his representatives, choose within any reasonable time afterwards to dispute it. The rule that a court of equity will not grant specific performance of a gratuitous contract is so well settled that it is. needless to cite further authorities for it: and it is not to be overlooked that whereas the other rules that limit the application of this peculiar remedy are of a more or less discretionary kind, and founded on motives of convenience and the practical requirements of procedure rather than on legal principle, this is an absolute and unqualified rule which must be considered as part of the substantive law. It is the practice of equity, however, at all events when the want of consideration is actively put forward as an objection tion may (and the practice must be the same, it is conceived, when the objection is made by way of defence in a suit for specific perforance) to admit evidence of an agreement under seal being in fact be shown aliunde. (a) Per Knight Bruce, L. J. Kekewich v. Manning, 1 D. M. G. 176, 188. founded on good consideration, where the deed expresses a nominal consideration (a) or no consideration at all (b), though (save in a case of fraud or illegality) a consideration actually inconsistent with that expressed in the deed could probably not be shown (a). Closely connected with this in principle is the rule of equity Equity won't give that although no consideration is required for the validity of a effect to complete declaration of trust, or a complete transfer of any legal imperfect or equitable interest in property, yet an incomplete voluntary gifts. gift creates no right which can be enforced. Certain recent decisions have indeed shown a tendency to infringe on this rule by construing the circumstances of an incomplete act of bounty. into a declaration of trust, notwithstanding that the real intention of the donor was evidently not to make himself a trustee, but to divest himself of all his interest (c). But these have been disapproved in still later judgments which seem entitled to more weight (d). (a) Leifchild's ca. 1 Eq. 231. (b) Llanelly Ry. & Dock Co. v. L. & N. W. Ry. Co. 8 Ch. 942. (c) Richardson v. Richardson, 3 Eq. 686, Morgan v. Malleson, 10 Eq. 475. (d) Warriner v. Rogers, 16 Eq. 340, Richards v. Delbridge, 18 Eq. 11, Heartley v. Nicholson, 19 Eq. 233. Original type of contract. CHAPTER V. EFFECTS AND INCIDENTS OF CONTRACT. (Rules as to parties: Contracts with uncertain persons: Effects on third persons: Transfer of Contracts). And The original and simplest type of contract is an agreement creating an obligation between certain persons. The persons are ascertained by their description as individuals, and not by their satisfying any general class-description: or, more shortly, they are denoted by proper names and not by class-names (a). the persons who become parties in the obligation created by the agreement are the persons who actually conclude the agreement in the first instance, and those only. The object of this chapter will be to point out the extent to which modern developments of the law of contract have altered this primary type either by modifications co-extensive with the whole range of contract or by special classes of exceptions. The fundamental notion from which we must take our departure is one that our own system of law has in common with the Roman system and the modern law of other civilized countries derived therefrom. There is some evidence that we ourselves got this (together with other principles of the law of contract) from Roman sources. However that may be, we find it as firmly established in our own system as in the Roman from a very early date, though it happens not to be definitely expressed in a general form in any of our authorities. A wide statement of the principle may be given in the shape of a maxim thus: (a) Savigny, Obl. § 53 (2. 16), cp. rally, ib. §§ 53-70, pp. 17-186. on the subject of this chapter gene |