CONTRACT.II.ELEMENTS.
THE general method to be pursued in the analysis of contract is the same as that already explained with regard to possession.
Wherever the law gives special rights to one, or imposes special burdens on another, it does so on the ground that certain special facts are true of those individuals.In all such cases, therefore, there is a twofold task.First, to determine what are the facts to which the special consequences are attached; second, to ascertain the consequences.The first is the main field of legal argument.With regard to contracts the facts are not always the same.They may be that a certain person has signed, sealed, and delivered a writing of a certain purport.They may be that he has made an oral promise, and that the promisee has furnished him a consideration.
The common element of all contracts might be said to be a promise, although even a promise was not necessary to a liability in debt as formerly understood.But as it will not be possible to discuss covenants further, and as consideration formed the main topic of the last Lecture, I will take up that first.
Furthermore, as there is an historical difference between consideration in debt and in assumpsit, I shall confine myself to the latter, which is the later and more philosophical form.
It is said that any benefit conferred by the promisee on the promisor, or any detriment incurred by the promisee, may be a consideration.It is also thought that every consideration may be reduced to a case of the latter sort, using the word "detriment" in a somewhat broad sense.
To illustrate the general doctrine, suppose that a man is desirous of having a cask of brandy carried from Boston to Cambridge, and that a truckman, either out of kindness or from some other motive, says that he will carry it, and it is delivered to him accordingly.If he carelessly staves in the cask, there would perhaps be no need to allege that he undertook to carry it, and on principle, and according to the older cases, if an undertaking was alleged, no consideration for the assumpsit need be stated. The ground of complaint in that case would be a wrong, irrespective of contract.But if the complaint was that he did not carry it as agreed, the plaintiff's difficulty would be that the truckman was not bound to do so unless there was a consideration for his promise.Suppose, therefore, that it was alleged that he promised to do so in consideration of the delivery to him.Would this be a sufficient consideration? The oldest cases, going on the notion of benefit to the promisor, said that it could not be, for it was a trouble, not a benefit.
Then take it from the side of detriment.The delivery is a necessary condition to the promisor's doing the kindness, and if he does it, the delivery, so far from being a detriment to the promisee, is a clear benefit to him.
But this argument is a fallacy.Clearly the delivery would be sufficient consideration to enable the owner to declare in assumpsit for the breach of those duties which arose, irrespective of contract, from the defendant's having undertaken to deal with the thing. It would be a sufficient consideration for any promise not involving a dealing with the thing for its performance, for instance, to pay a thousand dollars. And the law has not pronounced the consideration good or bad according to the nature of the promise founded upon it.The delivery is a sufficient consideration for any promise.
The argument on the other side leaves out of sight the point of time at which the sufficiency of the consideration is to be determined.This is the moment when the consideration is furnished.At that moment the delivery of the cask is a detriment in the strictest sense.The owner of the cask has given up a present control over it, which he has a right to keep, and he has got in return, not a performance for which a delivery was necessary, but a mere promise of performance.The performance is still future. But it will be seen that, although the delivery may be a consideration, it will not necessarily be one.A promise to carry might be made and accepted on the understanding that it was mere matter of favor, without consideration, and not legally binding.
In that case the detriment of delivery would be incurred by the promisee as before, but obviously it would be incurred for the sole purpose of enabling the promisor to carry as agreed.
It appears to me that it has not always been sufficiently borne in mind that the same thing may be a consideration or not, as it is dealt with by the parties.The popular explanation of Coggs v.Bernard is, that the delivery was a consideration for a promise to carry the casks safely.I have given what I believe to be the true explanation, and that which I think Lord Holt had in view, in the fifth Lecture. But whether that which I have offered be true or not, a serious objection to the one which is commonly accepted is that the declaration does not allege that the delivery was the consideration.
