Page:Harvard Law Review Volume 8.djvu/111

RIGHT TO SUE UPON A CONTRACT. 95 it comes to be regarded as a rule of law ; and it is only when it is applied to cases in which it works injustice that the soundness of the rule begins to be questioned. It is no doubt true that there are many cases in which an action may be brought by the person for whose benefit the contract is made ; but it by no means follows that it is a general rule of law that a stranger to a contract who has given no consideration for a promise has a legal right to recover damages for the non-perform- ance of it, merely because the performance of it would have been beneficial to him. There are cases in which it has been held that the person for whose benefit it was intended that the promise should be performed might maintain an action upon it; but, in view of the well-known elements of contracts at common law, even such cases do not justify the declaration of a general rule without carefully considering upon what principles the liability rests in such a case, and whether the rule involves a change in our concep- tion of the ground of legal liability arising out of agreements. It is generally admitted that on a simple contract an action can be brought only by the parties to the contract; but it is said that on contracts not under seal a different rule may prevail. The law of sealed instruments expressed in technical form the idea of the common law with regard to liability upon obligations. These were originally the only obligations arising out of express agreement, and it was upon these that the technical law of express agreements grew up. The action on the case upon promises arose, not strictly out of agreements, but out of the relations and circumstances of the parties. A promise was often alleged for form's sake when in fact there was none, and if liability existed by reason of the cir- cumstances, it was sometimes alleged to rest upon a promise when in fact it rested on something else. There were, therefore, early cases in which a right of action appeared to be based upon a promise made to another when in fact it rested upon a right to an accounting or upon a trust or a debt ; and it was easy to cite these cases afterward as sustaining an action of assumpsit upon a prom- ise to another, while admitting that on a sealed instrument no such action would lie. The law of the sealed instrument, however, is that which deals with the obligation arising out of the contract itself, and the principles of this law are equally applicable to con- tracts not under seal. The old and well-established conception is that the obligations of a contract belong to and rest upon those who enter into the contract. It is only the parties to it that