A promise for which there is no consideration cannot be enforced at law. This has been a principle of the common law from the earliest times. (a)1 It is said to have been borrowed from the Roman law. The phrase "nudum pactum " - commonly used to indicate a promise without consideration - certainly was taken from that law; but it does not mean with us precisely what the Roman jurists understood by it. By the civil law gratuitous promises could be enforced only where they were made with due formality, and in prescribed language and manner; then such agreement was a "pactum verbis prescriptis vestitum," and where such promise was not so made it was called a "nudum pactum, " (b) that is, nudum because not vestitum. But an agreement thus formally ratified, or "vestitum," was enforced without reference to its consideration; whereas a "nudum pactum," or promise not formally ratified, was left to the good faith of the promisor, the law refusing to aid in its enforcement, unless the promisee could prove a distinct consideration. The principle of this is, obviously, that if a contract be not founded
(a) 17 Ed IV. ch. 4, pl. 4; 3 Hen. VI. c. 36, pl. 33; Bro. Abr. Action sur le Case, 40. - See on the subject of Consideration articles by " E. L. P." in the March, May, and July numbers of the American Law
Register for 1854, in which the cases on the whole topic are ably collected.
(b) Vin. Com. de Inst. lib. 3, tit. 14, p. 659 (ed. 1755); Id. lib. 3, De Verborum Obligationibus, tit. 16, p. 677; Cod. lib. 7, tit. 52 (6th ed.), Gothofred.
1 For the history of the doctrine of consideration see Holmes, Common Law, 247; Ames, History of Assumpsit, 2 Harv. L. Rev. 1, 53; Hare, Cont. 117; Pollock, Cont. note (f); Salmond, History of Contract, 3 Law Qu. Rev. 166.
*upon a consideration, it shall not be enforced, unless ratified in such a way as may show that it was deliberate, intentional, and distinctly understood by both parties. The rule was intended to protect parties from mistake, inadvertence, or fraud. A similar rule or practice, grounded on a similar purpose, prevails on the continent of Europe; where contracts which are properly ratified and confirmed, before a public notary or similar magistrate, are valid without inquiry into their consideration; while a private contract can be enforced only on proof of a consideration. And, indeed, it can only be the same principle which makes reasonable an ancient and well-established distinction in the common law, by virtue whereof a contract under seal is in general valid without reference to the consideration; not by way of exception to the rule that no promise can be enforced which was not made for a consideration, but because, as it is said, the seal implies a consideration. The only real meaning of this must be, that the act of sealing is a deliberate and solemn act, implying that caution and fulness of assent which the rule of the civil law was intended to secure. (c) Whether this inference from the use of a seal can now be made with sufficient * force to sustain the very great difference made by the law between sealed instruments and those which have no seal, might be doubted. The distinction rests now, perhaps, more on the difficulty of disturbing a rule established by long use and of very extended operation. (d) And in some of the States by usage, and in others by statutory provisions, the want or failure of consideration may be a good defence to an action on a sealed contract. (dd)1
(c) That this is the real distinction between contracts under seal and contracts not under seal, see Plowden, arguendo, in Sharrington v. Stratton, Plowd. 308. " Words," says he, " pass from man to man lightly and inconsiderately; but where the agreement is by deed there is more time for deliberation; for when a man passes a thing by deed, first, there is the determination of the mind to do it; and upon that he causes it to be written, which is one part of deliberation, and afterwards he puts his seal to it, which is another part of deliberation; and lastly, he delivers the writing as his deed, which is the consummation of his resolution; so that there is great deliberation used in the making of deeds, for which reason they are received as a lien final to the party, and are adjudged to bind the partys without examining upon what cause or consideration they were made. As if I, by deed, promise to give you £20, here you shall have an action of debt upon this deed, and the consideration for my promise is not examinable; it is sufficient to say it was the will of the partt who made the deed." See 2 Smith, Lead. Cas. 456. See also Morley v. Boothby, .3 Bing. 111; Fallowes v. Taylor, 7 T. R.477; Shubrick v. Salmond, 3 Burr. 1639; Fonbl. Eq. vol. i. p. 344, n. (a).
(d) In Ortucan v. Dickson, 13 Cal. 33, it is said that the difference between sealed and unsealed instruments is now a mere unmeaning and arbitrary distinction, made by technical law, and not sustained by reason.
(dd) See Gray v. Handkinson, 1 Bay, 278; State v. Gaillard, 2 id. 11; Swift V.
1 If the parties intended that there should be a consideration for a promise under seal, failure of consideration would doubtless be a good defence everywhere. Mere
By the general rule only a creditor of the grantor can avail himself of the fact that a deed was without consideration, (de) because as between the parties to a deed there is no need of a consideration. (df)
By the civil law, and the modern continental law, the consideration is the cause of the contract. This principle is quoted and apparently adopted by Plowden; and it has been recently acknowledged by high judicial authority, and the cause distinctly discriminated from the motive. (e)
Doubts have been expressed whether a contract reduced to writing was not in this respect the same as one under seal. (/) But this question is now abundantly settled; and both in this country and in England a consideration must be proved, where the contract is in writing but not under seal, as much as if the contract were oral only. (g) The exception to this rule in the case of mercantile negotiable paper is considered elsewhere.
Hawkins, 1 Dallas, 17; Solomon v. Kim-mel, 5 Binn. 232; Chase v. Boughton, 11 Wend. 106; Leonard v. Bates, 1 Blackf. 173; Coyle v. Fowler, 3 J. J. Marsh. 473; Pebbles v. Stephens, 1 Bibb, 500; Walker v. Walker, 13 Ired. L. 335; Matlock v. Gibson, 8 Rich. L. 437; Martin v. Barton Iron Works, 35 Ga. 320.
(de) Hatch v. Bates, 54 Me. 136.
(df) Laberee v. Carleton, 53 Me. 211. (e) Thomas v. Thomas, 2 Q. B. 851.
In this case the defendant contended, that the motive with which an agreement had been made, was a part of the legal consideration, and that the declaration ought to have set out the same with the other considerations, but Patteson, J., said: " It would be giving to ' causa' too large a construction if we were to adopt the view urged for the defendant; it would be confounding consideration with motive. Motive is not the same thing with consideration. Consideration means something which is of some value in the eye of the law, moving from the plaintiff; it may be some benefit to the defendant, or some detriment to the plaintiff; but at all events it must be moving from the plaintiff. Now that which is suggested as the consideration here, a pious respect for the wishes of the testator, does not in any way move from the plaintiff; it moves from the testator; therefore, legally speaking, it forms no part of the consideration." See also Lilly v. Hays, 5 A. & E. 548; Smith, Cont. p. 88, n. - In Mouton v. Noble, 1 La. An. 192, Eustis, C. J., said: "Civilians use the word cause in relation to obligations in the same sense as the word consideration is used in the jurisprudence of England and the United States."
(f) Rann v. Hughes, 3 T. R. 350, n. (a), 7 Bro. P. C. 550; Pillans v. Van Mierop, 3 Burr. 1670.
(g) Cook v. Bradley, 7 Conn. 57; Dodge v. Burdell, 13 Conn. 170; Bean v. Burbank, 16 Me. 458; Beverleys v. Holmes, 4 Munf. 95; Brown v. Adams, 1 Stew. (Ala.) 51; Burnet v. Bisco, 4 Johns. 235; People v. Shall, 9 Cowen, 778; Roper v. Stone, Cooke, 499; Clark v. Small, 6 Yerg. 418; Perrinen. Cheeseman, 6 Halst. 174. - The consideration, however, need not be expressed in the writing. It may be proved aliunde. Tingley v. Cutler, 7 Conn. 291; Arms v. Ashley, 4 Pick. 71; Cummings v. Dennett, 26 Me. 397; Mouton v. Noble, 1 La. An. 192; Thompson v. Blanchard, Comst. 335; Patchin v. Swift, 21 Vt. 292. The admission of a consideration in the writing, is of course prima facie evidence of its existence. Whitney v. Stearns, 16 Me. 394.
want of consideration, however, where the parties intended that there should be no consideration, was no defence to a sealed instrument at common law, and is generally held no defence now in the absence of statute. Consolidated, etc. R. R. Co. v. O'Neill, 25 Ill. App. 313; Krell v. Codman, 154 Mass. 454; McMillan v. Ames, 33 Minn. 257; Aller v. Aller, 40 N. J. L. 446; Burkholder v. Plank, 69 Pa. 225.
It has been held, that where the consideration is expressed in a written contract no other can be proved, (A) * unless there are words which indicate other considers- tions; (i) because this would be an alteration of the contract by evidence aliunde. The same rule is said to be applied in equity, unless relief is sought against the instrument on the ground of fraud or mistake; (j) but many decisions of weight allow the maker of a written promise, or of a deed, to prove other and additional considerations besides those expressed in the contract. (A;)' Where the consideration is not expressed it may be proved. (l) And where the contract declares that it was made for a valuable consideration, this is prima facie evidence of such consideration. (m)