as an executed transfer, but as against creditors it is merely

Benefit to Promisor or Detriment to Promisee.

$ 27. It will be noticed that the definitions of consideration given in the preceding section all speak of it as either a benefit to the promisor or a detriment to the promisee. But some modern writers upon the law of contract deny that benefit to the promisor can constitute a consideration, and assert that detriment to the promisee is the essential and invariable test of the existence of a consideration. So Pollock speaks of an agreement lacking "the necessary element of detriment to the promisee." It is maintained that the definition of consideration as being either a benefit to the promisor or detriment to the promisee "is a statement of the past history of consideration rather than of the present doctrine."2

In the vast majority of contracts, both these elements exist. Men do not make promises which induce other persons to act without at the same time themselves receiving a benefit. But it is also indubitable that a man cannot avoid liability upon his promise on the ground that the thing done by the other party, who relied upon it, was of no benefit to him. Very frequently the performance of a contract confers no benefit on the promisor, but has caused some labor or inconvenience to the promisee. There are, however, certainly some valid contracts where there is no detriment to the promisee but only a benefit to the promisor. Thus when one promises to carry out an existing contract he has already made with a third person, many cases hold that the promise. or its performance, is a sufficient consideration for the counter-promise. Now in these cases, the promisee, the man who performs his existing contract, suffers no detriment in legal contemplation, since he only does what he was legally bound

10 Swan . Dent, 2 Md. Ch. 111, note. Marriage is a valuable consideration. Nail r. Maurer, 25 Md. 532; Michael v. Morey, 26 Md. 239; Shea's Appeal, 121 Pa. 302.

1 Contracts. p. 186.

2 Prof. Williston, in 8 Harvard Law Review, 33.

3 Post, § 41.

to do; but the promisor receives a benefit in that he obtains assurances that something in which he is interested will be Jone.

It is held by some cases that the forbearance to bring a wholly groundless action at law is a consideration for a promise, because the promisor is benefited by being relieved of the annoyance of a suit. It cannot properly be said that giving up an unfounded claim is a detriment to the promisee.

So also when the owner of a patent which is in fact invalid. but appears to be good, grants a right to use it in consideration of a promise of payment, that promise is enforceable if the promisor got a benefit from the supposed monopoly; otherwise it is not.5

It is true that the law, like Saturn, often devours its own children, as von Jhering says. But it does not appear that the old rule, that consideration may be chiefly a benefit to the promisor has been wholly annulled, or superseded.

The rule in England

$ 28. Moving from the Promisee. and in one or two States is that the consideration must move from the promisee. So it has been said, that "consideration means something of some value in the eye of the law moving from the plaintiff." This means that a promise by A. for a consideration furnished by B. to do something for the benefit of C. is invalid.-in other words, that a third person cannot sue upon a contract made for his benefit, because he is a stranger to the consideration. It will be shown subsequently that the rule in America generally is that contracts made for the benefit of third persons are enforceable by them, and consequently it is not necessary that the consideration should move from the promisee."

4 Callisher . Bischoffsheim, L. R. 5 Q. B. 449, and cases post, § 37.

5 Kinsman r. Parkhurst, 18 How. 289; Marston r. Swett, 82 N. Y. 527: Saltus r. Belfow Co., 133 N. Y. 499.

1 Thomas r. Thomas, 2 Q. B. 851.

2 See post, Part iii, ch. 2. A promise of this kind is distinguishable from a promise made directly by A. to C. upon a consideration furnished by B. It is said in 15 Harvard Law Rev. 771, that the

§ 29. Adequacy of Consideration.

It is "an elementary principle that the law will not enter into an inquiry as to the adequacy of the consideration."

If the Courts should pass upon the question of the adequacy of the consideration for the promise, it is obvious that they would be engaged in fixing prices and making bargains for the parties, a proceeding which would violate the fundamental principle, that there should be the utmost liberty in the making of contracts. Men are not wards of the Courts nor are they under legislative tutelage. They are presumed to be capable of making their own bargains. On the other hand, if an illusory consideration were sufficient to support a promise, then the rule requiring the existence of a consideration would have no force. Therefore the law requires it to be real; i. e., something of value. There may be a qualitative but not a quantitative analysis of consideration. A stipulation in consideration of one dollar is just as effectual and valuable as a larger sum stipulated for and paid.2

When a thing is to be done by the plaintiff, be it ever so small, this is a sufficient consideration to support a promise to pay for it. The contracting parties must determine for

3

validity of such a promise is an open question; but it would seem that there should be no doubt but that it is good in those States where contracts for the benefit of third persons are enforced.

1 Westlake r. Adams, 5 C. B. N. S. 265. And see Earle r. Peck, 64 N. Y. 569. Under the Civil Code of Louisiana, art. 1860, lesion is the injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract. The remedy for this injury is founded on its being the effect of implied error or imposition, for, in every commutative contract, equivalents are supposed to be given and received. In the sale of land lesion beyond a moiety entitles the party to rescission. Ware rv. Couvillion, 112 La. 43.

2 Lawrence . McCalmont, 2 Howard, at p. 452. It has been said. however, that this rule does not apply to a mere exchange of sums of money or coin, whose value is exactly fixed and where the element of time is of no importance. Therefore a promise to pay $600 for one cent has been held to be void, unless the one cent has an extrinsic value as a rare or unique coin. Schnell r. Nell, 17 Ind. 29. And the consideration of one dollar paid has been held insufficient to support a promise to pay $1.000 at a future period. Shepard v. Rhodes, 7 R. I. 470. This theory underlies the laws against usury.

3 Hannan v. Towers, 3 H. & J. 147; Haines . Haines, 6 Md. 435; Beatty r. Lamb. 112 Pa. 480.

themselves the value and benefit of the consideration as of the other constituents of their contract. The release of a supposed right of dower which the parties think necessary to confirm a title is a consideration for a promissory note. If a man is appointed guardian on the ground that he agrees not to claim any compensation, the appointment is a sufficient consideration for the promise. The renunciation of the right to administer by one executor is a consideration for a promise by the other to divide the commissions with him.7 A promise by a party to serve as administrator of an estate without compensation is valid and based upon a sufficient consideration when the persons to whom the promise is made waive their right to administer and become sureties on the bond of the party making the promise.

Gross inadequacy of consideration is, however, in many cases treated as evidence of fraud.9

In equity, inadequacy of consideration is a ground for refusing specific performance or other equitable relief to a party seeking to enforce a promise.10

§ 30. Gratuitous Promises. When the loan of an article is made, or when a thing is delivered to one who agrees gratuitously to take charge of it or to do something with it-in other words, in the bailments of depositum, madatum and commodatum-after the article has once been delivered there is a duty imposed on the receiver to exercise due care, although his promise to receive it could not have been enforced for lack of consideration. It is generally said that

4 Taylor . Turvey, 33 Md. 505.

5 Sykes v. Chadwick, 18 Wallace, 141.

6 State v. Baker, 8 Md. 44.

7 Ohlendorff r. Kanne. 66 Md. 495. See also Bassett . Miller. 8 Md. 548.

8 Mott r. Fowler, 85 Md. 676.

9 Walker . Shepard, 210 Ill. 112; Coffey r. Sullivan, 63 N. J. Eq. 296.

10 Geiger v. Green, 4 Gill, 472; Smoot v. Andrews, 19 Md. 398; Robinson r. Robinson, 4 Md. Ch. 176; Lawson r. Mullinix. 104 Md. 156., But a subsequent change in the value of property will not be considered. Cochran . Pascault, 54 Md. 1.

this implied promise to use care is based upon the consideration of detriment to the promisee who parted with possession upon that understanding.1 It is in fact a duty imposed by law as resulting from the inherent nature of the transaction.

But also when no article is delivered, but one undertakes to perform a voluntary service for another he is liable for damage resulting from his negligence in doing it. A newspaper advertised that it would answer inquiries from readers desiring financial advice, and the plaintiff asked for the name of a "good stockbroker." The newspaper recommended to him a person who was an outside broker; i. e., not a member of the Stock Exchange, and who was in fact an undischarged bankrupt. Plaintiff entrusted his funds to this person, who made way with them. It was held that there was a contract, based on a consideration, between the plaintiff and the proprietors of the newspaper which "did not amount to a warranty of the character or conduct of the broker named, but did amount to a contract to take reasonable care in the nomination of a broker," and that there was a clear breach of this contract.3

A person who voluntarily undertakes to invest money for another and acts negligently or disregards the instructions given to him, is liable for a loss thereby caused.*

$31. Various Considerations. A promissory note for $10,000 executed in consideration of the promisee's naming his child after the promisor has been held to be enforce

1 Prince . Ala. State Fair, 106 Ala. 340; 28 L. R. A. 716; Schermer . Neurath, 54 Md. 491.

2 In Anson on Contracts, 98, it is said: "To find the ground of this liability we must go back to the time when the Courts gave damages for the misfeasance of an undertaking, although they would not recognize a non-feasance. The right does not arise until the services have been entered upon, and rests on the broad ground stated by Willes, J., in Skelton r. L. & N. W. Ry. Co., L. R. 2 C. P. 636, 'If a person undertakes to perform a voluntary act, he is liable if he performs it improperly, but not if he neglects to perform it.' "

3 De la Bere r. Pearson [1908], 1 K. B. 280.

4 Williams v. Higgins, 30 Md. 408; Isham . Post, 141 N. Y. 100; 23 L. R. A 90. Cf. Watson r. Feigner, 208 Ill. 144.