Sec 682

By an arbitrary rule of the common law, a seal, as we have already seen,1 imports consideration, and in a suit on a sealed instrument a consideration need not be proved. The reason sometimes given is that affixing a seal implies greater deliberation than does attaching a signature, and that when a party deliberately determines to make a gift he should be permitted so to do. So far as concerns the supposed deliberation attending the using of a seal, the distinction is without reason. A scroll in the shape of a seal is more easily made than a name is signed; and a seal may be stamped on wax even more easily than a scroll can be made. If, however, it is generally understood that a sealed promise does not require a consideration, then persons wishing to make a promise without consideration will resort to a seal for the purpose; and the validity of the promise will rest on the position, that where a party desires to bind himself without consideration he should be permitted to do so if he use the proper terms.2 The unreasonableness of the distinction between sealed and unsealed documents, however, has led to important modifications of the principle that a sealed document imports consideration while an unsealed document does not. In the first place commercial paper is taken out of the rule. It is not sealed, yet on suing on it consideration need not be proved. In the second place, while some consideration must be proved, with this exception, on suing on an unsealed document, the amount of the consideration is of no consequence unless the question of fraud be raised; and though a man cannot bargain away his property for nothing, yet he can sell it for a price which is virtually giving it away. In the third place, a court of equity, while it regards a sealed grant as binding without consideration, will not, should the donor in such a grant desire to retreat from it, compel him to consummate it by a specific performance. A sealed contract will not be rescinded because it is without consideration, but it will not be enforced when it is without consideration.1

Seallng imports consideration.

1 Supra, sec 495.

2 Plowden, 308, speaks as follows: "Because words are oftentimes spoken by men unadvisedly and without deliberation, the law has provided that a contract by words shall not bind without consideration. But where the agreement is by deed, there is more time for deliberation. For when a man passes a thing by deed, first there is the determination of the mind to do it, and upon that he causes it to be written, which is one part of the deliberation; and afterwards he puts his seal to it, which is another part of deliberation; and lastly he delivers the writing as his deed, which is the consummation of his resolution." This is adopted as the reason of the distinction by Leake, 2d ed. 147, following Wilmot, J., in Pillens V. Microp, 3 Burr. 1670; Fallowes V. Taylor, 7 T. R. 475. But the truth is there are few documents which require so little time and deliberation as do bonds, powers of attorney, and transfers of stock. A printed form is filled up by the insertion of a few written words, and a seal which may be a mere wafer or even a written scroll is attached with less deliberation, so far at least as the time is concerned, than would be required to write a name. A different explanation is given in Holmes's Common Law, 134, 254, 258.