If the foregoing principles be accepted, they will be seen to explain a doctrine which has given the courts some trouble to establish.I mean the doctrine that an executed consideration will not sustain a subsequent promise.It has been said, to be sure, that such a consideration was sufficient if preceded by a request.But the objections to the view are plain.If the request was of such a nature, and so put, as reasonably to imply that the other person was to have a reward, there was an express promise, although not put in words, and that promise was made at the same time the consideration was given, and not afterwards.If, on the other hand, the words did not warrant the understanding that the service was to be paid for, the service was a gift, and a past gift can no more be a consideration than any other act of the promisee not induced by the promise.
The source of the error can be traced partially, at least, in history.Some suggestions touching the matter were made in the last Lecture.A few words should be added here.In the old cases of debt, where there was some question whether the plaintiff had showed enough to maintain his action, a "contract precedent" was spoken of several times as raising the duty.Thus, where a man had granted that he would be bound in one hundred shillings to pay his servant on a certain day for his services, and for payments made by the servant on his account, it was argued that there was no contract precedent, and that by parol the party is not obliged; and, further, that, so far as appeared, the payments were made by the servant out of his own head and at no request, from which no duty could commence. So when debt was brought on a deed to pay the plaintiff ten marks, if he would take the defendant's daughter to wife, and it was objected that the action should have been covenant, it was answered that the plaintiff had a contract precedent which gave him debt. The first case in assumpsit only meant to adopt this long familiar thought.A man went bail for his friend's servant, who had been arrested.Afterwards the master promised to indemnify the bail, and on his failure to do so was sued by him in assumpsit.It was held that there was no consideration wherefore the defendant should be charged unless the master had first promised to indemnify the plaintiff before the servant was bailed; "for the master did never make request to the plaintiff for his servant to do so much, but he did it of his own head."This is perfectly plain sailing, and means no more than the case in the Year Books.The report, however, also states a case in which it was held that a subsequent promise, in consideration that the plaintiff at the special instance of the defendant had married the defendant's cousin, was binding, and that the marriage was "good cause...because ensued the request of the defendant." Whether this was intended to establish a general principle, or was decided with reference to the peculiar consideration of marriage, it was soon interpreted in the broader sense, as was shown in the last Lecture.It was several times adjudged that a past and executed matter was a sufficient consideration for a promise at a later day, if only the matter relied on had been done or furnished at the request of the promisor. It is now time to analyze the nature of a promise, which is the second and most conspicuous element in a simple contract.The Indian Contract Act, 1872, Section 2,8 says:--"(a.) When one person signifies to another his willingness
to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal:
"(b.) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted.A proposal when accepted becomes a promise."According to this definition the scope of promises is confined to conduct on the part of the promisor.If this only meant that the promisor alone must bear the legal burden which his promise may create, it would be true.But this is not the meaning.For the definition is of a promise, not of a legally binding promise.We are not seeking for the legal effects of a contract, but for the possible contents of a promise which the law may or may not enforce.We must therefore only consider the question what can possibly be promised in a legal sense, not what will be the secondary consequence of a promise binding, but not performed.
An assurance that it shall rain to-morrow, or that a third person shall paint a picture, may as well be a promise as one that the promisee shall receive from some source one hundred bales of cotton, or that the promisor will pay the promisee one hundred dollars.What is the difference in the cases? It is only in the degree of power possessed by the promisor over the event.
He has none in the first case.He has equally little legal authority to make a man paint a picture, although he may have larger means of persuasion.He probably will be able to make sure that the promisee has the cotton.Being a rich man, he is certain to be able to pay the one hundred dollars, except in the event of some most improbable accident.
