The mere fact of unfulfilled promise was not enough, in the
eyes of medieval English lawyers, to give a handle to the law.
But injury caused by reliance on another man’s undertaking
was different. The special undertaking or
“assumption” creates a duty which is broken by fraudulent
Assumpsit.
or incompetent miscarriage in the performance. I profess to be
a skilled farrier, and lame your horse. It is no trespass, because
you trusted the horse to me; but it is something like a trespass,
and very like a deceit. I profess to be a competent builder; you
employ me to build a house, and I scamp the work so that the
house is not fit to live in. An action on the case was allowed
without much difficulty for such defaults. The next step, and
a long one, was to provide for total failure to perform. The
builder, instead of doing bad work, does nothing at all within
the time agreed upon for completing the house. Can it be said
that he has done a wrong? At first the judges felt bound to
hold that this was going too far; but suitors anxious to have
the benefit of the king’s justice persevered, and in the course
of the 15th century the new form of action, called assumpsit from
the statement of the defendant’s undertaking on which it was
founded, was allowed as a remedy for non-performance as well
as for faulty performance. Being an action for damages, and
not for a certain amount, it escaped the strict rules of proof
which applied to the old action of debt; being in form for a kind
of trespass, and thus a privileged appeal to the king to do right
for a breach of his peace, it escaped likewise the risk of the
defendant clearing himself by oath according to the ancient
popular procedure. Hence, as time went on, suitors were emboldened
to use “assumpsit” as an alternative for debt, though
it had been introduced only for cases where there was no other
remedy. By the end of the 16th century they got their way;
and it became a settled doctrine that the existence of a debt
was enough for the court to presume an undertaking to pay it.
The new form of action was made to cover the whole ground
of informal contracts, and, by extremely ingenious devices of
pleading, developed from the presumption or fiction that a man
had promised to pay what he ought, it was extended in time
to a great variety of cases where there was in fact no contract
at all.
The new system gave no new force to gratuitous promises. For it was assumed, as the foundation of the jurisdiction, that the plaintiff had been induced by the defendant’s undertaking, and with the defendant’s consent, to alter his position for the worse in some way. He had Consideration. paid or bound himself to pay money, he had parted with goods, he had spent time in labour, or he had foregone some profit or legal right. If he had not committed himself to anything on the strength of the defendant’s promise, he had suffered no damage and had no cause of action. Disappointment of expectations is unpleasant, but it is not of itself damnum in a legal sense. To sum up the effect of this in modern language, the plaintiff must have given value of some kind, more or less, for the defendant’s undertaking. This something given by the promisee and accepted by the promisor in return for his undertaking is what we now call the consideration for the promise. In cases where debt would also lie, it coincides with the old requirement of value received (quid pro quo) as a condition of the action of debt being available. But the conception is far wider, for the consideration for a promise need not be anything capable of delivery or possession. It may be money or goods; but it may also be an act or series of acts; further (and this is of the first importance for our modern law), it may itself be a promise to pay money or deliver goods, or to do work, or otherwise to act or not to act in some specified way. Again, it need not be anything which is obviously for the promisor’s benefit. His acceptance shows that he set some value on it; but in truth the promisee’s burden, and not the promisor’s benefit, is material. The last refinement of holding that, when mutual promises are exchanged between parties, each promise is a consideration for the other and makes it binding, was conclusively accepted only in the 17th century. The result was that promises of mere bounty could no more be enforced than before, but any kind of lawful bargain could; and there is no reason to doubt that this was in substance what most men wanted. Ancient popular usage and feeling show little more encouragement than ancient law itself to merely gratuitous alienation or obligations. Also (subject, till quite modern times, to the general rule of common-law procedure that parties could not be their own witnesses, and subject to various modern statutory requirements in various classes of cases) no particular kind of proof was necessary. The necessity of consideration for the validity of simple contracts was unfortunately confused by commentators, almost from the beginning of its history, with the perfectly different rules of the Roman law about nudum pactum, which very few English lawyers took the pains to understand. Hasty comparison of misunderstood Roman law, sometimes in its civil and sometimes in its ecclesiastical form, is answerable for a large proportion of the worst faults in old-fashioned text-books. Doubtless many canonists, probably some common lawyers, and possibly some of the judges of the Renaissance time, supposed that ex nudo pacio non oritur actio was in some way a proposition of universal reason; but it is a long way from this to concluding that the Roman law had any substantial influence on the English.
The doctrine of consideration is in fact peculiar to those jurisdictions where the common law of England is in force, or is the foundation of the received law, or, as in South Africa, has made large encroachments upon it in practice. Substantially similar results are obtained in other modern systems by professing to enforce all deliberate promises, but imposing stricter conditions of proof where the promise is gratuitous.
As obligations embodied in the solemn form of a deed were thereby made enforceable before the doctrine of consideration was known, so they still remain. When a man has by deed declared himself bound, there is no need to look for any bargain, or even to ask whether the other party Deeds. has assented. This rugged fragment of ancient law remains embedded in our elaborate modern structure. Nevertheless gratuitous promises, even by deed, get only their strict and bare rights. There may be an action upon them, but the powerful remedy of specific performance—often the only one worth having—is denied them. For this is derived from the extraordinary jurisdiction of the chancellor, and the equity administered by the chancellor was not for plaintiffs who could not show substantial merit as well as legal claims. The singular position of promises made by deed is best left out of account in considering the general doctrine of the formation of contracts; and as to interpretation there is no difference. In what follows, therefore, it will be needless, as a rule, to distinguish between “parol” or “simple” contracts, that is, contracts not made by deed, and obligations undertaken by deed.
From the conception of a promise being valid only when
given in return for something accepted in consideration of
the promise, it follows that the giving of the promise
and of the consideration must be simultaneous. Words
of promise uttered before there is a consideration for
Promise
and offer.
them can be no more than an offer; and, on the other hand, the
obligation declared in words, or inferred from acts and conduct, on
the acceptance of a consideration, is fixed at that time, and cannot
be varied by subsequent declaration, though such declarations
may be material as admissions. It was a long while, however,
before this consequence was clearly perceived. In the 18th
century it was attempted, and for a time with considerable
success, to extend the range of enforceable promises without
regard to what the principles of the law would bear, in order
to satisfy a sense of natural justice. This movement was checked
only within living memory, and traces of it remain in certain
apparently anomalous rules which are indeed of little practical
importance, but which private writers, at any rate, cannot
safely treat as obsolete. However, the question of “past
consideration” is too minute and technical to be pursued here.
The general result is that a binding contract is regularly constituted
by the acceptance of an offer, and at the moment when it
is accepted; and, however complicated the transaction may be,
there must always, in the theory of English law, be such a
