按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
ant had not any quid pro quo。 The court adopted the argument； and said that there was no contract or consideration to ground this action； but that the plaintiff might have sued in assumpsit。 /1/
It was； perhaps； the lingering of this idea； and the often repeated notion that an assumpsit was not a contract； /2/ to which was attributable a more enlarged theory of consideration than prevailed in debt。 It was settled that assumpsit would lie for a mere omission or nonfeasance。 The cases which have been mentioned of the reign of Henry VI。 were followed by others in the latter years of Henry VII。； /3/ and it was never again doubted。 An action for such a cause was clearly for a breach of promise； as had been recognized from the time of Edward III。 If so； a consideration was necessary。 /4/ Notwithstanding occasional vagaries； that also had been settled or taken for granted in many cases of Queen Elizabeth's time。 But the bastard origin of the action which gave rise to the doubt how far any consideration at all was necessary； made it possible to hold considerations sufficient which had been in debt。
Another circumstance may not have been without its influence。 It would seem that； in the period when assumpsit ＇286＇ was just growing into its full proportions； there was some little inclination to identify consideration with the Roman causa； taken in its broadest sense。 The word 〃cause〃 was used for consideration in the early years of Elizabeth； with reference to a covenant to stand seized to uses。 /1/ It was used in the same sense in the action of assumpsit。 /2/ In the last cited report； although the principal case only laid down a doctrine that would be followed to…day； there was also stated an anonymous case which was interpreted to mean that an executed consideration furnished upon request； but without any promise of any kind； would support a subsequent promise to pay for it。 /3/ Starting from this authority and the word 〃cause；〃 the conclusion was soon reached that there was a great difference between a contract and an assumpsit； and that； whereas in contracts 〃everything which is requisite ought to concur and meet together； viz。 the consideration of the one side； and the sale or the promise on the other side； 。。。 to maintain an action upon an assumpsit； the same is not requisite； for it is sufficient if there be a moving cause or consideration precedent； for which cause or consideration the promise was made。〃 /4/
Thus； where the defendant retained the plaintiff to be ＇287＇ to his aunt at ten shillings a week； it was held that assumpsit would lie； because the service； though not beneficial to the defendant； was a charge or detriment to the plaintiff。 /1/ The old questions were reargued； and views which were very near prevailing in debt under Henry VI。； prevailed in assumpsit under Elizabeth and James。
A surety could be sued in assumpsit； although he had ceased to be liable in debt。 /2/ There was the same remedy on a promise in consideration that the plaintiff would marry the defendant's daughter。 /3/ The illusion that assumpsit thus extended did not mean contract； could not be kept up。 In view of this admission and of the ancient precedents； the law oscillated for a time in the direction of reward as the true essence of consideration。 /4/ But the other view prevailed； and thus； in fact； made a change in the substantive law。 A simple contract； to be recognized as binding by the courts of Henry VI。； must have been based upon a benefit to the debtor； now a promise might be enforced in consideration of a detriment to the promisee。 But in the true archaic spirit the doctrine was not separated or distinguished from the remedy which introduced it； and thus debt in modern times has presented the altered appearance of a duty limited to cases where the consideration was of a special sort。
The later fortunes of assumpsit can be briefly told。 It introduced bilateral contracts； because a promise was a ＇288＇ detriment； and therefore a sufficient consideration for another promise。 It supplanted debt； because the existence of the duty to pay was sufficient consideration for a promise to pay； or rather because； before a consideration was required； and as soon as assumpsit would lie for a nonfeasance； this action was used to avoid the defendant's wager of law。 It vastly extended the number of actionable contracts； which had formerly been confined to debts and covenants； whereas nearly any promise could be sued in assumpsit； and it introduced a theory which has had great influence on modern law；that all the liabilities of a bailee are founded on contract。 /1/ Whether the prominence which was thus given to contract as the foundation of legal rights and duties had anything to do with the similar prominence which it soon acquired in political speculation； it is beyond my province to inquire。
＇289＇ LECTURE VIII。
CONTRACT。 II。 ELEMENTS。
THE general method to be pursued in the analysis of contract is the same as that already explained with regard to possession。 Wherever the law gives special rights to one； or imposes special burdens on another； it does so on the ground that certain special facts are true of those individuals。 In all such cases； therefore； there is a twofold task。 First； to determine what are the facts to which the special consequences are attached； second； to ascertain the consequences。 The first is the main field of legal argument。 With regard to contracts the facts are not always the same。 They may be that a certain person has signed； sealed； and delivered a writing of a certain purport。 They may be that he has made an oral promise； and that the promisee has furnished him a consideration。
The common element of all contracts might be said to be a promise； although even a promise was not necessary to a liability in debt as formerly understood。 But as it will not be possible to discuss covenants further； and as consideration formed the main topic of the last Lecture； I will take up that first。 Furthermore； as there is an historical difference between consideration in debt and in assumpsit； I shall confine myself to the latter； which is the later and more philosophical form。
It is said that any benefit conferred by the promisee on the promisor； or any detriment incurred by the promisee； ＇290＇ may be a consideration。 It is also thought that every consideration may be reduced to a case of the latter sort； using the word 〃detriment〃 in a somewhat broad sense。
To illustrate the general doctrine； suppose that a man is desirous of having a cask of brandy carried from Boston to Cambridge； and that a truckman； either out of kindness or from some other motive； says that he will carry it； and it is delivered to him accordingly。 If he carelessly staves in the cask； there would perhaps be no need to allege that he undertook to carry it； and on principle； and according to the older cases； if an undertaking was alleged； no consideration for the assumpsit need be stated。 /1/ The ground of complaint in that case would be a wrong； irrespective of contract。 But if the complaint was that he did not carry it as agreed； the plaintiff's difficulty would be that the truckman was not bound to do so unless there was a consideration for his promise。 Suppose； therefore； that it was alleged that he promised to do so in consideration of the delivery to him。 Would this be a sufficient consideration？ The oldest cases； going on the notion of benefit to the promisor； said that it could not be； for it was a trouble； not a benefit。 /2/ Then take it from the side of detriment。 The delivery is a necessary condition to the promisor's doing the kindness； and if he does it； the delivery； so far from being a detriment to the promisee； is a clear benefit to him。
But this argument is a fallacy。 Clearly the delivery would be sufficient consideration to enable the owner to declare in assumpsit for the breach of those duties which ＇291＇ arose； irrespective of contract； from the defendant's having undertaken to deal with the thing。 /1/ It would be a sufficient consideration for any promise not involving a dealing with the thing for its performance； for instance； to pay a thousand dollars。 /2/ And the law has not pronounced the consideration good or bad according to the nature of the promise founded upon it。 The delivery is a sufficient consideration for any promise。 /3/
The argument on the other side leaves out of sight the point of time at which the sufficiency of the consideration is to be determined。 This is the moment when the consideration is furnished。 At that moment the delivery of the cask is a detriment in the strictest sense。 The owner of the cask has given up a present control over it； which he has a right to keep； and he has got in return； not a performance for which a delivery was necessary； but a mere promise of performance。 The performance is still future。 /4/
But it will be seen that； although the delivery may be a consideration； it will not necessarily be one。 A promise to carry might be made and accepted on the understanding that it was mere matter of favor； without consideration； and not legally binding。 In that case the detriment of delivery would be incurred by the promisee as before； but obviously it would be incurred for the sole purpose