CH. II. s. 1. for, in this case, as we have seen, the objection merely goes to the evidence of the agreement. Requisites of Simple Contract (Assent). Or agents, acting without authority. So there is an objection to the above rule, in all cases where a person acting as agent for another professes, though without authority, to contract for him. In such cases, the maxim omnis ratihabitio retrotrahitur et mandato priori æquiparatur applies: the subsequent assent or recognition by the party for whom the agent professed to act, being equivalent to a previous authority (e). Thus, where A. and B. were jointly interested in a quantity of oil, and A. entered into a contract for the sale of it, without the authority or knowledge of B., who, upon receiving information of the circumstance, refused to be bound by it, but afterwards assented, and samples of the oil were delivered to the vendees; it was held, that B.'s subsequent ratification of the contract rendered. it binding upon him (ƒ). But in such cases it must appear, that the agent professed to act for the party who sues on the contract (g). Of the consideration. General rule as to the necessity for. SECT. 2.-The Consideration for the Contract. Our second proposition was that, to constitute an agreement not under seal, there must be a good and valid consideration. And as to this the rule is, that a sufficient consideration or recompense for making, or motive or inducement to make, the promise upon which a party is charged, is of the very essence of a contract not under seal, both at law and in equity; and that such consideration must exist, or the promise will be void, and no action be maintainable thereon (h). Ex nudo pacto non oritur actio. The earliest records of our law show that this maxim was always recognized in this country. But it is a principle not peculiar to English law. It was recognized in the civil law; and, indeed, we have borrowed from the Roman jurists the term nudum pactum, as applied to promises without consideration (i). And it is also a maxim in the (e) See per Cur., Bird v. Brown (1850), 4 Exch. 786, 798; per Bayley and Hol-* royd, JJ., Saunderson v. Griffith (1826), 5 B. & C. 909,913, 915; Portuguese Mines, In re, Badman, Ex parte, (1890) 45 Ch. D. 16. (f) Soames v. Spencer (1822), 1 D. & (g) See Saunderson v. Griffith, supra. terms, and cannot exist;" per Lord Loughborough, C., Myddleton v. Lord Kenyon (1794), 2 Ves. jun. 391. (2) 2 Bl. Com. 445. Nudum pactum est ubi nulla subest cansa præter conventionem. It appears, however, that by the civil law, a verbal promise or agreement, although without consideration, was binding it made with certain prescribed solemnities. Obligations thus created were called Stipulations. See 1 Fonb. Tr. Eq., 5th ed., 336, n. (a). As to what was nudum pactum by the civil law, see id. 340. 1 French law, that a consideration or cause is essential to the validity CH. II. s. 2. of a promise (k). Requisites of Simple Contract (Consideration). The above rule, as applied to simple contracts, seems to be almost without exception in the English law. Even in the case of bills of exchange and promissory notes, a consideration is necessary Rule as to to give them effect. The rule is, that a consideration is essential bills of exeven in the case of such instruments; but they differ from other change. simple contracts in this-that whereas, in general, it must appear affirmatively that there was a consideration for such contracts, the Courts hold, that in the case of bills and notes, unless the transaction be affected by fraud or some suspicion of fraud, a consideration is to be presumed to exist, until the contrary is shown (1). sideration sufficient. As to what is a valid consideration to support a simple contract, What conit is hardly necessary to observe, that, if the consideration be illegal, the contract will be void. It is not, however, proposed at present to treat of illegal considerations, which are fully treated in Chapter XXI., post, but merely to point out what considerations are in law deemed sufficient, or, to use the more common term, raluable (m). are valuable. Valuable considerations are divided by the civilians into four What conkinds:-1st. Do ut des; as when I give money or goods, on siderations contract that I shall be repaid money or goods for them again. Of this kind are all loans of money upon bond or promise of repayment; and all sales of goods,-in which there is either an express contract to pay so much for them, or else the law implies a contract to pay so much as they are worth. 2nd. The second species is facio ut facias; as when I agree with a man to do his work for him, if he will do mine for me; or if two persons agree to marry together, or to do any other positive act on both sides. Or it may be to forbear on one side, in consideration of something done on the other; as that in consideration the tenant will repair his house, the landlord will not sue him for waste. Or it may be for mutual forbearance on both sides; as that, in consideration that A. will not trade to Lisbon, B. will not trade to Marseilles; so as to avoid interfering with each other. 3rd. The third species of consideration is facio ut des; when a man agrees to perform any CH. II. s. 2. Requisites of Simple Contract (Considera tion). General rule as to sufficiency of. Rule as to adequacy of, with respect to the benefit conferred on the promiser. thing for a price, either specifically mentioned, or left to the determination of the law to set a value to it. As when a servant hires himself to his master for certain wages, or an agreed sum of money; here the servant contracts to do his master's service, in order to earn that specific sum. Otherwise, if he be hired generally, for then he is under an implied contract to perform this service for what it shall be reasonably worth. 4th. The fourth species is do ut facias, which is the direct counterpart of the preceding. As when I agree with a servant to give him such wages upon his performing such work; which is nothing else but the last species inverted; for servus facit ut herus det, and herus dat ut servus faciat (n). The general rule as to the sufficiency of the consideration is that it may arise either, 1st, by reason of a benefit resulting to the party promising, or to a third person, by the act of the promisee; or, 2ndly, by reason of the latter sustaining any loss or inconvenience, or subjecting himself to any charge or obligation, however small the benefit, charge, or inconvenience may be; provided such act be performed, or such inconvenience or charge incurred, with the consent, express or implied, of the promiser, or, in the language of pleading, at his request (o). Before we proceed to illustrate this general rule, by referring to particular instances, it may be proper to give some general explanation of its different branches. In the first place, touching the benefit conferred on the promiser sought to be charged, we may observe, that it is not essential that the consideration should be adequate in point of actual value,—the law having no means of deciding upon this matter (p); and it being considered unwise to interfere with the facility of contracting, and the free exercise of the judgment and will of the parties, by not allowing them to be sole judges of the benefits to be derived from their bargains, provided there be no incompetency to contract, and the agreement violate no rule of law. It is, indeed, necessary that the consideration should be of some value (q); but it is sufficient, as we have said, if it be of slight value only; or even if it be such as could be valuable to the party promising (r). E.g., the compromise or abandonment of a doubtful right is a sufficient con (n) 2 Bl. Com. 444-5. (0) See per Cur., Gerhard v. Bates (1853), 2 E. & B. 476, 487; per Lord Ellenborough, C. J., Bunn v. Guy (1803), 4 East, 190, 194; 7 R. R. 560; per Tindal, C. J., Willatts v. Kennedy (1831), 8 Bing. 5, 8. (p) See Moss v. Hall (1850), 5 Exch. 46, 49. (q) Smith v. Smith (1584), 3 Leon. 88. (r) Per Cur., Haigh v. Brooks (1839), 10 A. & E. 309, 320. And see Cheale v. Kenward (1858), 27 L. J., Ch. 784, 787 (App.). Adequacy of consideration, when material at law, is a question for the Court; per Cur., Mallan v. May (1843), 11 M. & W. 653, 668; per Best, C. J., Homer v. Ashford (1825), 3 Bing. 322, 327. sideration for a contract, even where it turns out that the point CH, II. s. 2. given up was, in truth, against the promisee (s). And the same rules prevail in equity (t), inadequacy of consideration being held, of itself, to be no ground for impeaching a contract, whether such contract relate to the sale of an estate (u), or an annuity (v), or any other subject (x). But it is said that an equity may be founded on inadequacy of consideration, where the inadequacy is such as to involve the conclusion, that the party either did not understand what he was about, or was the victim of some imposition (y). Requisites of Simple Contract (Consideration). Same rule in equity. So, as regards the extent of trouble, loss, or obligation which the With respect to the charge promisee has taken upon himself at the promiser's request, we shall imposed on find, on considering the cases to be presently referred to, that it is the promisec. immaterial that the detriment or charge thus assumed is, in fact, of the most trifling description, provided it be not utterly worthless in fact and in law; and that, unless it appear that the promisee incurred no detriment whatever, it need not be shown, in order to constitute a good consideration, that a benefit resulted to the promiser from the performance by the promisee of the stipulated act. Thus, where the declaration stated that, in consideration that plaintiff, at defendant's request, had consented to allow defendant to weigh two boilers of the plaintiff, the defendant promised to give them up after weighing, in as perfect condition as they were in at the time of the consent; it was held, on motion in arrest of judgment, that the consideration was sufficient (z). So, where the declaration stated that, in consideration that the plaintiff, at the request of the defendant, had given the latter a certain letter, by means of which he was enabled to end disputes which had arisen between himself and third parties, the defendant promised to give plaintiff 1,000l.; it was held a sufficient consideration for defendant's promise (a). So a licence by the plaintiff to the defendant, to do an act which Licence the plaintiff has, by law, power to prevent the defendant from doing; or the waiver of a tort, by committing which the defendant (s) Longridge v. Dorville (1821), 5 B. & Ald. 117. (t) Per Turner, L. J., Townend v. Toker (1866), L. R., 1 Ch. 446, 458; Cheale v. Kenward (1858), 27 L. J., Ch. 784. (u) Coles v. Trecothick (1804), 9 Ves. jun. 234, 246; 7 R. R. 167; Western v. Russell (1814), 3 V. & B. 187; 13 R. R. 178. (e) Ployer v. Shearard (1743), Amb. 18; Low v. Barchard (1803), 8 Ves. 133; 7 R. R. 4. (x) See Sugd. Con. View, 197; 1 E. Chitty's Eq. Index, Consideration, 2; 1 Bridg. Eq. D. 359. (y) Per Lord Westbury, Tennent v. Tennents (1870), L. Rep., 2 Sc. Ap. 6, 9; and see Milnes v. Cowley (1820), 8 Price, 620; Prebble v. Boghust (1818), 1 Swanst. 309, at p. 329. (2) Bainbridge v. Firmstone (1838), 8 A. & E. 743. (a) Wilkinson v. Oliveira (1835), 1 Scott, 461; and see Sturlyn v. Albany (1588), Cro. Eliz. 67. CH. II. s. 2. derives a benefit, although such tort might occasion no real injury to the plaintiff, is a sufficient consideration (b). Requisites of Simple Contract (Consideration). Consideration, by third party. per So, where an order to facilitate the making of an agreement, for which there was a sufficient consideration between the plaintiff and a third person, the defendant,-who personally received no benefit from the agreement,-became a party thereto; it was held that, as son becoming the agreement was such as the plaintiff would not have made, unless the defendant had become a party to the contract, there was a sufficient consideration for the promise of the latter (c). And where the declaration stated, that one R. wished to get possession of certain deeds which the defendants held, and which they were willing to give up on the plaintiff's accepting and paying certain bills; that the bills were accepted by plaintiff upon R.'s request, and on his engagement to procure the defendants to deliver up the deeds on payment of the bills; and that, in consideration of the plaintiff accepting the bills, the defendants agreed to deliver the deeds when the bills should be paid; it was held, on demurrer, that the declaration disclosed a sufficient consideration (d). Agreement to endeavour. Agreement to agree with a third person. General rule. So it is a sufficient consideration for a promise, that the plaintiff undertook to endeavour to perform any act at the defendant's request, e.g., to procure a lease, or a note from a debtor, &c., (e); for this must be an inconvenience to the plaintiff, and might eventually benefit the defendant. But, in such a case, a bona fide effort on the part of the plaintiff, to attain the proposed object for the defendant, would be necessary. An agreement to enter into an agreement with another person, as to agree to take a lease from him, is a sufficient consideration (ƒ). It was held in an old case, that the mere giving leave of absence to a soldier, at the instance of a third person, is a good consideration for a promise by the latter to the captain who gave such permission, that the soldier should return in ten days, or that the promiser would pay the captain 201. (g). And generally, any damage, or any suspension or forbearance of his right, or any possibility of a loss occasioned to the plaintiff by the promise of another is a sufficient consideration for such promise (h); but if the consideration for the defendant's promise be an act which occasions neither a benefit to himself, nor a charge (b) See Edgeware Highway Board v. Harrow Gas Company (1874), L. R. 10 Q. B. 92; Davis v. Morgan (1825), 4 B. & C. 8. (c) Bailey v. Croft (1812), 4 Taunt. 611; and see Mocatta v. Franco (1781), 3 Dougl. 11. (d) Tipper v. Bicknell (1837), 4 Scott, 462. (e) Gurnons v. Hodges (1603), Yelv. 11; Lampleigh v. Brathwait (1616), Hobart, 105; see Com. Dig. Action upon the Case upon Assumpsit (B.), (b. 5). (f) Foster v. Wheeler (1888), 38 Ch. D. 130, C. A. (g) Taylor v. Jones (1698), 1 Ld. Raym. 312. (h) Forth v. Stanton (1670), 1 Wms. Saund. 211 c. |