Page:Harvard Law Review Volume 12.djvu/537

TIVO THEORIES OF CONSIDERATION. 517 he known that he was committing a tort, he would unquestionably have failed to get reimbursement from the creditor. The con- sideration, however, would have been precisely the same in both cases. But the public policy was on his side in the one case and would be against him in the other. As public policy may destroy the value of a contract where the consideration is an act, so it may have the same effect where the consideration is a forbearance. One, who is induced to refrain from a contemplated murder or other crime by the promise of money, renounces his freedom of action and gives the promisor precisely what he wanted in return for his promise. There is, therefore, a bargain. But it is obviously against the public good to permit one to obtain a right of action solely as a reward for abstaining from the commission of a crime. The same reasoning is applicable to cases where the promisee is induced to refrain from grossly immoral though not criminal acts, or where he for- bears, in return for a promise, to commit what he knows to be a tort.^ In all these cases of forbearance just mentioned, those who interpret detriment in the restricted sense would say that the forbearance was legally due from the promisee independently of the promise, and that the promisee must fail because there was no consideration for the promise. But inasmuch as the same result is reached whether it be said that the forbearance is no considera- tion, or that the forbearance is a consideration but the bargain inoperative on grounds of public policy, we need not consider these cases further, but pass at once to those instances where the decision must vary accordingly as one or the other of the two theories of detriment is adopted. I. Forbearance to prosecute a groundless claim. A line of decisions^ extending over nearly three centuries seemed to have established firmly in our law the doctrine that forbearance to sue upon an unfounded claim would never support 1 Cowper V. Green, 7 M. & W. 633; McCaleb v. Price, 12 Ala. 753 ; Worthen v Thompson, 54 Ark. 151 ; Bruton v. Wooton, 15 Ga. 570; Smith v. Bruff, 75 Ind. 412; Botkin V. Livingston, 21 Kas. 232; Wendover v. Pratt, 121 Mo. 273; Swaggard v. Hancock, 25 Mo. App. 596 ; Crosby v. Wood, 6 N. Y. 369 ; Tolhurst v. Powers, 1 33 N. Y. 460 ; Cleveland v. Lenze, 27 Oh. St. 383. But see contra Pool v. Clipson, Shepp. Faithful Counsellor, (2 Ed.) 131. 2 Lord Gray's Case (1566), i Roll. Ab. 28, pi. 57; Stone v. Wythipool (1588), Crc El. 126; Tooley z/. Windham (1590), Cro. El. 206; Smith v. Jones (1610), Yelv. 184; Rosyer v. Langdale (1650), Sty. 248; Hunt v. Swain (1665), T. Ray. 127; Barber v. Fox (1670), 2 Wms. Saund. 136; Loyd v. Lee (1718), i Stra. 94; Jones v. Ashburn- ham (1804), 4 East, 455 ; Edwards v. Baugh (1843), " M. & W. 641.