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Page:Harvard Law Review Volume 2.djvu/19

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APRIL 15, 1888.


I.—Express Assumpsit.

THE mystery of consideration has possessed a peculiar fascination for writers upon the English Law of Contract. No fewer than three distinct theories of its origin have been put forward within the last eight years. According to one view, “the requirements of consideration in all parol contracts is simply a modified generalization of quid pro quo to raise a debt by parol.”[1] On the other hand, consideration is described as “a modification of the Roman principle of causa, adopted by equity, and transferred thence into the common law.”[2] A third learned writer derives the action of assumpsit from the action on the case for deceit, the damage to the plaintiff in that action being the forerunner of the “detriment to the promisee,” which constitutes the consideration of all parol contracts.[3]

To the present writer[4] it seems impossible to refer consideration to a single source. At the present day it is doubtless just and expedient to resolve every consideration into a detriment to the promisee incurred at the request of the promisor. But this definition of consideration would not have covered the cases of the six-

  1. Holmes, Early English Equity, 1 L.Q. Rev. 171; The Common Law, 285. A similar opinion had been previously advanced by Professor Langdell. Contracts, § 47.
  2. Salmond, History of Contract, 3 L.Q. Rev. 166, 178.
  3. Hare, Contracts, Ch. VII. and VIII.
  4. It seems proper to say that the substance of this article was in manuscript before the appearance of Judge Hare’s book or Mr. Salmond’s Essay.