Page:Harvard Law Review Volume 32.djvu/724

688 HARVARD LAW REVIEW to give what he knows he cannot give is doing nothing of any moment — nothing but moving his Hps. It is a mistake to class our kind of case with voidable contracts, as Professor Ames does.^^ It belongs rather with the void contracts of married women. Professor Ballantine thinks the fact that the promise of a married woman is not binding is not necessarily due to its being void in law, and therefore incapable of serving as consideration, and that it has been somewhat hastily assumed that there is no consideration given by a married woman's promise. In fact, he thinks that there is consideration here, though no mutuahty of obligation.^^ This result follows readily enough, of course, if one accepts Ames' theory of consideration; but if the test of consideration is made to be a detriment in the sense of a binding obligation, either assumed in the present or assured for the future, or if it is to be found in the exchange of a real present value or a possible future value of a real kind, it is hard to see how there can be a consideration in either promise in our A B case. It is equally hard to see how there is any mutuality of obligation, if, indeed, any distinction is to be made between these two ideas.^ In short, no present theory of consideration seems able to account for our case as a "contract." If not dealt with on the theory of tort, it should be treated on the principles of quasi-estoppel. The man's promise is originally gratuitous, but as it was relied on by the girl innocently, reasonably, and to her disadvantage, it should be upheld. If it is to be continued to be treated by courts and theorists as a contract, I think it can only be said that it is another of those cases which the courts are ready to enforce without any consideration having been given, and which led Professor Ashley to advocate that the whole doctrine of consideration be done away with. Edward W. Hope. University of Oregon Law School. ^ 13 Harv. L. Rev. 33, 34. See also Professor Ballantine, 11 Mich. L. Rev. 429. ^ II Mich. L. Rev. 429; so, Ames, 13 Harv. L. Rev. 33. " Williston, 27 Harv. L. Rev. 525; Harriman on Contracts, 2 ed., § 103.