Page:Harvard Law Review Volume 12.djvu/541

TH^O THEORIES OF CONSIDERATION. $21 not be surprising, if ultimately a considerable majority of the Ameri- can courts, not already fettered by their own precedents, should adopt the English and Massachusetts rule, which has the great merit of not hampering, by a technicality, freedom of contract. III. Performance of a pre-existing contractual duty to the prom- isor himself. The question, whether a promise is enforceable where the prom- isor gets for it only what the promisee was already bound by con- tract to give him, has generally arisen in cases where a part of the amount due has been given and received in satisfaction of a debt. The ruling of the courts is well-nigh universal that, notwithstand- ing the partial payment upon such terms, the creditor may recover the rest of the debt. As the rule is commonly expressed, the pay- ment of a part of a debt cannot be a satisfaction of the whole. And the rule is commonly thought to be a corollary of the doctrine of consideration. But this is a total misconception. The rule is older than the doctrine of consideration and is simply the survival of a bit of formal logic of the mediaeval lawyers. The earliest allusion to the effect of a partial payment in satisfac- tion of a debt that the writer has found is the remark of Danvers, J., in 1455;^ and he, strange to say, thought the part payment should be effective : " Where one has quid pro qno, there it shall be adjudged a satisfaction. As if one be indebted to me in 40 pounds and I take from him I2d. in satisfaction of the 40 pounds, in this case I shall be barred of the remainder." Forty years later,^ Fineux, J., expressed a similar opinion. " I think there is no dif- ference between accord and satisfaction in money and in a horse. For notwithstanding the sum is less than that in demand, still when the creditor has received it by his own agreement it is as good a satisfaction to him as anything else." But Brian, C. J., said in the same case : " The action is brought for 20 pounds and the concord is that he shall pay only 10 pounds which appears to be no satisfaction for 20 pounds. For payment of 10 pounds cannot be payment of 20 pounds. But if it were a horse, which horse is paid according to the concord, that is a good satisfaction ; for it does not appear whether the horse is worth more or less than the sum in demand. And notwithstanding the horse may be worth only a penny, that is not material, for it is not apparent." Perkins in his Profitable Book,^ first published in 1532, agreed with Danvers and 1 Y. B. 33 Hen. VI. f. 48, A. pi. 32. 2 y. B. 10 Hen. VH., f. 4, pi. 4. ' F. 141 of edition of 1545 ; § 749 of edition of 1757.