A promise may be a consideration for a promise, although not every promise for every other.It may be doubted whether a promise to make a gift of one hundred dollars would be supported by a promise to accept it.But in a case of mutual promises respectively to transfer and to accept unpaid shares in a railway company, it has been held that a binding contract was made.Here one party agrees to part with something which may prove valuable, and the other to assume a liability which may prove onerous. But now suppose that there is no element of uncertainty except in the minds of the parties.Take, for instance, a wager on a past horse-race.It has been thought that this would amount to an absolute promise on one side, and no promise at all on the other.
But this does not seem to me sound.Contracts are dealings between men, by which they make arrangements for the future.In making such arrangements the important thing is, not what is objectively true, but what the parties know.Any present fact which is unknown to the parties is just as uncertain for the purposes of making an arrangement at this moment, as any future fact.It is therefore a detriment to undertake to be ready to pay if the event turns out not to have been as expected.This seems to be the true explanation why forbearance to sue upon a claim believed the plaintiff to be good is a sufficient consideration, although the claim was bad in fact, and known by the defendant to be bad. Were this view unsound, it is hard to see how wagers on any future event, except a miracle, could be sustained.For if the happening or not happening of the event is subject to the law of causation, the only uncertainty about it is in our foresight, not in its happening.
The question when a contract is made arises for the most part with regard to bilateral contracts by letter, the doubt being whether the contract is complete at the moment when the return promise is put into the post, or at the moment when it is received.If convenience preponderates in favor of either view, that is a sufficient reason for its adoption.So far as merely logical grounds go, the most ingenious argument in favor of the later moment is Professor Langdell's.According to him the conclusion follows from the fact that the consideration which makes the offer binding is itself a promise.Every promise, he says, is an offer before it is a promise, and the essence of an offer is that it should be communicated. But this reasoning seems unsound.When, as in the case supposed, the consideration for the return promise has been put into the power of the offeree and the return promise has been accepted in advance, there is not an instant, either in time or logic, when the return promise is an offer.It is a promise and a term of a binding contract as soon as it is anything.An offer is a revocable and unaccepted communication of willingness to promise. When an offer of a certain bilateral contract has been made, the same contract cannot be offered by the other side.The so-called offer would neither be revocable nor unaccepted.It would complete the contract as soon as made.
If it be said that it is of the essence of a promise to be communicated, whether it goes through the stage of offer or not, meaning by communicated brought to the actual knowledge of the promisee, the law is believed to be otherwise.A covenant is binding when it is delivered and accepted, whether it is read or not.On the same principle, it is believed that, whenever the obligation is to be entered into by a tangible sign, as, in the case supposed, by letter containing the return promise, and the consideration for and assent to the promise are already given, the only question is when the tangible sign is sufficiently put into the power of the promisee.I cannot believe that, if the letter had been delivered to the promisee and was then snatched from his hands before he had read it, there would be no contract.
/l / If I am right, it appears of little importance whether the post-office be regarded as agent or bailee for the offerer, or as a mere box to which he has access.The offeree, when he drops the letter containing the counter-promise into the letter-box, does an overt act, which by general understanding renounces control over the letter, and puts it into a third hand for the benefit of the offerer, with liberty to the latter at any moment thereafter to take it.
The principles governing revocation are wholly different.One to whom an offer is made has a right to assume that it remains open according to its terms until he has actual notice to the contrary.The effect of the communication must be destroyed by a counter communication.But the making of a contract does not depend on the state of the parties' minds, it depends on their overt acts.When the sign of the counter promise is a tangible object, the contract is completed when the dominion over that object changes.
