It is not everything requested or given in exchange for a promise which will make the promise enforceable. In other words, it is not everything which the parties agree upon as consideration which the law will treat as valid consideration. It is frequently said that a promise has no consideration when what is meant is that the consideration given, though requested and furnished as requested, is not a valid, or sufficient or legal consideration to make the promise enforceable. Clearness of thought is promoted by using the word consideration as meaning consideration in fact, irrespective of its legal sufficiency or validity. The elliptical use of the word as meaning whatever may be legally necessary to make a promise binding results in an unnecessary multiplication of meanings for one word, since consideration is a word in common legal use in relation to other matters than the formation of simple contracts. If it is said then that a promise has no consideration, the meaning properly is that nothing was in fact given in exchange for the promise or that no action was taken in reliance upon it, either because the promise was intended as a gratuity or because the tiling for which it was offered was not given. If it is said that a promise is not supported by sufficient or good or valid consideration, the meaning is that though the promisor may have asked and received a return for his promise, the return is not such as the law considers sufficient to make the promise enforceable.
When the words "sufficient consideration" are used, no question of illegality or of public policy in any restricted sense is to be understood. It is doubtless generally true that consideration given in fact but illegal, or in violation of public policy, will not support a promise; 11 and it is also true that whatever may be the requirements of sufficient consideration, those requirements, like all rules of law, are in a broad sense dictated by public policy. Nevertheless, the distinction is important between consideration which is merely insufficient, and consideration which is illegal or in violation of some other public policy than that which requires an equivalent satisfactory to the law to be given for a promise in order that the promise shall be binding.12
10See infra, Sec. 440.
11 It is not invariably true. See infra, Sec.Sec. 1630-1632.
The requirement ordinarily stated for the sufficiency of consideration to support a promise is, in substance, a detriment incurred by the promisee or a benefit received by the promisor at the request of the promisor.13 For unilateral contracts, which were the earliest recognized by the law and may still be regarded as the typical form, the statement is as accurate as a brief general statement can be. For bilateral contracts it will be found that some modification of statement is necessary; though in substance the fundamental requirements are the same.14 That a detriment suffered by the promisee at the promisor's request is sufficient, though the promisor is not benefited is well settled.15 It will be found that in most cases where there is a detriment to the promisee there will also be a benefit to the promisor, because when the promisee does something detrimental to himself at the request of the promisor, the promisor must be assumed to make the request because he desired the performance in question and regarded it as beneficial to himself. It is true there may not be always such a quid pro quo as was necessary in the early law to create a debt; 16 but though the historical derivation of benefit as part of the definition of consideration may be from the quid pro quo in the action of debt, this derivation has so far been lost sight of that at the present time benefit would doubtless receive a wider meaning. But, as has been said, detriment to the promisee is enough without benefit to the promisor. There are a few cases, however, where there may be benefit to the promisor though no detriment to the promisee. These cases make it essential to decide whether a benefit to the promisor is of itself sufficient. Eminent recent writers on the law of contracts have endeavored to find the test solely in the detriment to the promisee,17 and their view is supported by the numerous dicta to the effect that performance of the promisee's legal duty is insufficient consideration for a promise;18 since such performance may be beneficial to the promisor, but cannot be legally detrimental to the promisee. But in the cases where such statements have been made, there generally was no more legal benefit to the promisor (since he received only a performance to which he was legally entitled) than there was detriment to the promisee. In one class of cases, however, namely, where the promisee's previous legal obligation was not to the promisor, but to a third person, there may be no detriment to the promisee, since he performs only what he was bound to do, and yet a benefit to the promisor to which he was not previously legally entitled. The weight of authority in these cases undoubtedly supports the view that such an agreement is invalid, and therefore by implication holds that a benefit to the promisor, is not a sufficient consideration.19 On the other hand are to be considered not only the numerous statements of courts and writers, that a benefit to the promisor is a sufficient alternative to the requirement of detriment to the promisee, but also cases which uphold the validity of agreements in which the consideration does not move from the promisee.20 On the whole, it seems better to take the wider rule. A promise made in return for a benefit to the promisor must have been seriously made, and it has been paid for at the price which the promisor requested and he has gained an advantage therefrom. This seems a sufficient reason for enforcing the promise, and the circumstance that the action of assumpsit was historically developed from an action of tort in which the gist of the action was an injury, or detriment to the promisee caused by reliance on the promise, seems an inadequate argument to the contrary. The law of contracts has travelled a long way from this beginning, and there seems no reason if the broader meaning makes for convenience at the present time why the natural meaning of the definition as laid down for centuries should be restricted for historical reasons.21
12 See infra, Sec. 134.
13 See for example Comyn's Dig. Action on the Case in Assumpsit, B. 1. Jones p. Asbburaham, 4 East, 456; Thomas v. Thomas, 2 Q. B. 851; Bolton v. Madden, L. R. 9 Q. B. 55, 56; Currie v. Miss, L. R. 10 Ex. 153, 162; Kemp p. Nat. Bank of the Republic, 109 Fed. 48, 52, 48 C. C. A. 213; Clark's Appeal, 57 Conn. 565, 19 Atl. 332; Ryan v. Hamilton, 205 111. 191, 68 N. E. 781; People v. Commercial Life Ins. Co., 247 111. 92, 93 N. E. 90; East-man v. Miller, 113 Iowa, 404, 85 N. W. 535; Brady v. Equitable Trust Co., 178 Ky. 693,199 S. W. 1082; Chicora Fertiliser Co. v. Dunan, 91 Md. 144, 46 Atl. 347, SO L. R. A. 401; Doyle v. Diron, 97 Mass. 208, 213, 93 Am. Dec 80; New York Mining Co. v. Martin, 13 Minn. 417, 421; Headley P. Leavitt,
65 N. J. Eq. 748, 55 Atl. 731; Atlantic Pebble Co. v. Lehigh Valley R., 89 N. J. L. 336, 342, 98 Atl. 410; Frear v. Hardenbergh, 5 Johns. 272, 277, 4 Am. Dec. 356; Rector, etc., St. Marks Church v. Teed, 120 N. Y. 583,24 N. E. 1014; Union Bank v. Sullivan, 214 N. Y. 332,108 N. E. 558; Eastman Land Co, v. Long-Bell Lumber Co., 30 Okl. 555, 120 Pac 276; Butson v. Mist, 81 Oreg. 607, 160 Pac. 530; Ballard v. Burton, 64 Vt. 387, 24 Atl. 769, 16 L. R. A, 664; Utah Nat. Bank v. Nelson, 38 Utah, 169, 111 Pac. 907; Drovera' Deposit Nat. Bank v. Ticnenor, 156 Wis. 251, 145 N. W. 777.
14See infra, Sec.Sec. 103-103f,
15 Riddle v. Hudson (Okl., 1919), 172 Pac. 921. See also cases in this section, passim, also infra, Sec. 113.
16See supra, Sec. 11
17 Langdell, Summary of Contracts.
5 64; Wald's Pollock on Contracts
(3d ed.), p. 185; Ames, 12 Harv. L. Rev. 515.
18 See infra, Sec.Sec. 120-133.
19 See infra, Sec.131.
20See infra, Sec. 114, also Edmund M. Morgan, 1 Minn. L. Rev. 383.
21 Not infrequently, in eases where legal detriment Buffered by the plaintiff in exchange for the defendant's promise might be found, the decision is rested wholly or partly on benefit received by the defendant. Thus in Richmond, etc, Ry. Co. v. Richmond, etc, Railroad Co., 96 Va. 670, 673, 675, 32 8. E. 787, the court bad in question an agreement between two railroads to share the expenses of erecting gates and maintaining a watchman at the crossing of their tracks. The court said: "It is said, however, that this contract is without consideration; that the Electric Company had the right, with or without its consent, to cross its tracks, authority to do so having been conferred by the City of Richmond. This we concede, but we know that the crossing of railways at grade is always attended with danger, and that when this crossing occurs in the streets of a city the danger is greatly enhanced. It was, therefore, for the mutual convenience, safety, and protection of the two companies that some arrangement should be made by which the danger incident to the situation might be diminished, if not wholly obviated. Counsel for the Electric Company says that the erection of gates does not tend to diminish the danger, and was not to the advantage of the Electric Company, because its employees are thereby induced to rely upon such means of protection against accident, and relax their own vigilance, and are rendered leas attentive to their duties. We think, however, that we can with propriety assume that it is a matter of common knowledge that the tendency of gates and a gatekeeper is to promote safety. . . . The contract [having thus been entered into and ratified] is, we find, supported by a sufficient consideration in the benefits which it has conferred upon the parties thereto, in the safety and protection