Page:Harvard Law Review Volume 8.djvu/46

30 . HARVARD LAW REVIEW. probably considered the right to recover damages for breach of the prior contract of less advantage than actual performance of the promise, and this advantage to the promisor, is, it is said, sufficient consideration to support the second promise. In other cases, as in the Massachusetts deqisions, a rescission of the earlier contract is relied on. Neither reason will support the decisions. Granting that a benefit or advantage moving from the promisee to the promisor is a good consideration, surely nothing can be regarded by the law as a benefit to the promisor unless it is something more than what he was already entitled to. The cases, therefore, demand the further assumption that, on breach of the original contract or on the announcement that it was about to be broken, the only thing to which the other party was entitled was a right of action for damages. If this be granted, it is obivous, that the substitution of performance, or a promise of performance, of the original contract f&r such a right of action affords ample consideration for a promise. But this cannot be granted. It is doubtless true that a promisor can always refuse to perform his promises, and in most cases the only liability he incurs thereby is to pay damages, but this is far from saying that when one enters into a contract he in effect agrees to perform or pay damages at his option. His duty is to perform the contract, and his co-contractor is entitled to the performance.^ If the duty is not performed, the only relief the law can generally give is an award of money damages ; but the inadequacy of a legal remedy to the plaintiff's right is not peculiar to the law of contracts. It would be an odd statement of the law to say that one who takes another's property, believing it to be his own, has a right to retain it on paying its value, and that the owner has no right to the property, but only to a right of action of damages. Yet, in such a case also, an award of money-damages equal to the value of the property is generally the owner's only relief. Probably no court would sustain a prom- ise made in consideration of the surrender of converted property to its owner,^ yet the promisor certainly may derive a benefit from 1 This is illustrated by the cases in equity which hold that a contract if of such a nature as to be enforceable in equity will be specifically enforced, though the contract provides that in case of breach the damages shall be liquidated at a specified amount. The defendant has no right to pay the damages and claim exemption from his promise. See Fry on Specific Performance, chap. iii. 2 See Cowper v. Green, 7 M. & W. 633; McCaleb v Price, 12 Ala. 753 ; Crosby v. Wood, 6 N. Y. 369 ; Jones v. Miller, 12 Mo. 408 ; Cleveland v. Lenze. 27 Ohio St. 383. V