Sec 493

Consideration, by our common law, is that which one party to a contract gives or does or promises in exchange for what is given or done or promised by the other party. A consideration, therefore, is an essential incident of a contract; nor is the English common law peculiar in so holding. According to the Roman standards, a contract from the necessity of things is bilateral, one party agreeing to a particular thing in exchange for something to be done by the other party. A. mere unilateral engagement is not a contract.1 But in a contract - e. g., a bilateral engagement - each stipulation is at once a promise and a consideration. A. agrees to work for B. for wages. What A. says is a promise so far as concerns himself and a consideration so far as concerns B.; what B. says is a promise so far as concerns himself and a consideration so far as concerns A.2 Other systems differ from ours in recognizing as valid unilateral promises, which, in our law, are not binding unless under seal; but all systems of jurisprudence are alike in maintaining that to a contract reciprocal engagements are necessary, whatever may be the names by which these engagements are distinguished. To a contract it is essential that there should be an exchange of legal rights; and what each party does or gives is, according to our terminology, the consideration for what the other party does or gives. A consideration, in this sense, has been said to "consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other;"1 but as a mere advantage to the promisor without detriment to the promisee would not avail,2 the proper test is detriment to the promisee. At the same time we must remember, that "consideration" in our law is not convertible with "causa" or "reason" in the Roman law. All our " considerations" would be " reasons" in the Roman sense; but it does not follow that all " reasons," - e. g., desire to aid a meritorious object, or to benefit one of my own family, - are considerations in our sense. And though all "considerations" are reasons, yet many of them are so slight that as mere reasons they would be entitled to little weight.3 An additional endorser, for instance, whom I know to be insolvent, adds very slightly to the security of a debt due me; yet the acquisition of this additional endorser is a sufficient consideration for the extension of the debt. - A consideration, therefore, must be a quid pro quo; though its value is to be determined by the parties themselves, and this determination will not be overhauled unless there be fraud. It is a price: it may be very inadequate, for the courts do not sit to fix values, but it must be something actually given or done, or promised. - One reason for this condition is fairness. A man should not be compelled to give unless on terms of reciprocity; and charity, as such, when ceasing to be voluntary, ceases to exist. - Another reason is implied in the very term consideration. Men ought not to be bound by their loose talk. If so, all expressions of gratitude and obligation would have to be suppressed. To make a promise binding it must be made either in a distinctively solemn way, which will be presently considered, or in the shape of a contract in which the parties independently give or take.4 - Mr. Pollock5 speaks of the doctrine of consideration, at least in the generality of form and application in which we now have it, " as peculiar to England." It is true, that in France, if Pothier is still authority, a gratuitous promise may be the subject of suit. It is otherwise in Germany; and by the most authoritative German commentators, a unilateral declaration of will, though made with the purpose of subjecting the maker to an obligation, creates, when there is no quid pro quo, no obligation which can be the subject of a suit, and can at any time be revoked by the maker.1 But while other systems hold, as does ours, to the position that a mere unilateral promise does not by itself bind, the doctrine of consideration, as we hold it, is peculiar to ourselves. With us, there must be a material quid pro quo; there must be something given or surrendered in return, no matter how slight, to make the promise binding. In the modern Roman law, as held in Germany, there must be a causa or reason to sustain the promise, and this reason must be rational. In other words, we require a material quid pro quo, but the Germans do not; they require that if the reason be irrational the promise is not to bind, while we sustain irrational bargains on considerations often slight when there is no fraud.2

Consideration is what is done in return for a promise.

1 It is true that in our own books we have the term "unilateral" sometimes applied to contracts executed on one side - e. g., sales on credit. But even this class of contracts are bilateral in the Roman sense - e. g., the purchaser promises to pay and the vendor warrants title. Promise is set up against promise.

2 See infra, sec 523.

1 Per cur. Currie v. Misa, L. R. 10 Ex. 162.

2 Infra, sec 505.

3 See infra, sec 516.

4 See to this effect, observations of Patterson, J., in Thomas v. Thomas, 2 Q. B.859.

5 Cont. 3d ed. 179.

1 Windscheid, Pand. sec 304; Koch, sec 69.

2 In the old Roman law, a pollicitation, in its wide sense, included all promises not made under the form prescribed by the law; but in its technical sense it was a promise to the public authorities to do certain things for the public benefit. When a pollicitation was with justa causa, - e. g., when the object was to avert some threatened public calamity, - it was held binding. Koch, sec 142. A votum was a promise to do something for a religious use. L. 2, D. h. t. The modern Roman law rejects both these exceptions, holding, however, that when a pollicitation or a votum is partially fulfilled, this, as leading the public body or institution partially endowed to take action on the faith of a continuance of the promised aid, binds the promisor.

Nuda pacta in the Roman law do not mean contracts without consideration, but contracts divested of the prescribed legal form. - From Koch, II. sec 69, the following is condensed: In the old Roman law contracts were classified as (1) real, (2) oral, (3) written, and (4) consensual. A contract not falling under one of these heads did not bind. According to the modern view all contracts bind unless prohibited; according to the view prevalent not only in the jurisprudence of early Rome, but generally in the jurisprudence of all other primitive communities, a contract does not bind unless authorized by the state. Under the old Roman system a specific form of stipulation was prescribed, and no contracts not solemnized in this form bound unless (1) they were executed on one side, or (2) they fell under certain specified heads to be hereafter mentioned. The reason why the validity of contracts was thus restricted, was stated to be the diffi-