36 HARVARD LAW REVIEW. complete search has revealed at least one case where such a promise was held an insufficient consideration.^ It is of course certain that a promise to forbear to commit a tort against a third person is not a valid consideration. This must be accounted for under the view now criticised as resting solely on pubHc policy, but it has generally been supposed that such an agreement also lacked con- sideration. We are therefore driven to the alternative of modify- ing the ordinarily received definition of consideration. If the test of the sufficiency of consideration be made whether the promisee has incurred a detriment at the request of the promisor (which would constitute a unilateral contract), or has promised something the performance of which will be, or may be,^ a detriment (which would constitute a bilateral contract), logical consistency is at- tained. Nor is it attained at the expense of disregarding the author- ities. The assertion is ventured that an examination of the cases will show that, however, judges define consideration, when they examine the sufficiency of consideration, either in case of unilateral or bilateral contracts, it is the thing to be done which they con- sider, — the perfornrance, not the fact that there is an obligation to perform.^ Furthermore, in 1875, Lush, J., delivering the opinion of the Court of Exchequer Chamber, in Currie v. Misa,* said, " A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit, accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other." This definition, which involves substan- tially the distinction contended for, is adopted by Pollock^ and Anson.^ Though Anson's criticism of the theory advanced by others must be deemed sound, his own explanation cannot be accepted as satisfactory. It may be granted that a promise not to re- scind the earlier contract would serve as consideration for a promise. It is doubtful whether merely failing to rescind would 1 Bates V. Sandy, 27 111. App. 552. 2 It is sufficient if the performance promised may be a detriment. A promise to insure, for instance, may be performed in a particular case without detriment, but the chance that it may not be is sufficient to make it a good consideration. ' See, for instance, Lord Abinger's reasoning in Jones v. Waite, 5 King. N. C. 341, 356, or that of Brown, J., in Robinson v. Jewett, 116 N. Y. 40, 53 In each of these cases, speaking of a contract clearly bilateral, the court pointed out the insufficiency of the thing promised.
- L. R. 10 Ex. 153, 162. 6 4th ed., p. 167. « 2d ed., p. 69.
