Though the technical requirements of the definition of consideration in unilateral contracts may be fulfilled by giving any promise in fact, it is obvious that a promise which assures the performance of an act which the law regards as of no value, is merely a technical exchange for a counter-promise, and that if the law is to be practically as well as technically reasonable, the mere making of such a promise irrespective of its content, should be insufficient. The only possible answer to this is to maintain, as Professor Ames maintained, that any act whatever, other than a promise, is sufficient consideration for a unilateral contract. If this is true it is reasonable to assert that the promise of any act may likewise be sufficient consideration. But it cannot be admitted that any act or forbearance which is requested as the consideration for a unilateral contract is legally sufficient.

Professor Ames's argument in support of his thesis as to unilateral contracts, is based on an examination of the law governing three classes of cases: namely, those where the consideration consists of, valid claim has a right to attempt to enforce his demand. The modern law simply rejects this artificial assumption.

1. The forbearance to prosecute a groundless claim;

2. The performance of a preexisting contractual duty to a person other than the promisor;

3. The performance of a preexisting contractual duty to the promisor himself.

As to the first group of cases, if they are assumed to go to the farthest extreme which has been suggested,44 there is no inconsistency with the definition that not any act or forbearance whatever but only one which is a legal detriment to the promisee or legal benefit to the promisor is sufficient to support a unilateral contract; for it may well be argued that one who has an honest belief in the validity of his claim has a legal right to attempt its enforcement, and that to forbear to exercise this right is a legal detriment. It seems to have been at one time assumed by the English law that only one who has a

44 See infra, Sec.135.

The second group of cases, which includes those where performance of a preexisting contractual duty to a person other than the promisor is the consideration, affords still less support to the argument. Such cases as sustain the validity of the consideration (a numerical minority) do so because the court holds the promisor in the second contract has received a benefit from the performance of the promisee, not because anything requested is sufficient consideration.45

The third class of decisions which Professor Ames examines consists of cases where performance of a contractual duty to the promisor himself, is the consideration given for the defendant's promise. These are mainly cases where payment of part of a liquidated debt was made in consideration of an agreement to discharge the whole.

That payment of a liquidated debt or part of it will not support any promise by the creditor, is conceded by Professor Ames to be the general rule of law, but he cites early authorities showing that in the sixteenth century the law was probably otherwise. Where there are scores of decisions in the eighteenth and nineteenth centuries, an inquiry as to the law of the sixteenth century is merely of historical interest. That some modern courts have objected to the law on this matter is doubtless true, and it is also true that inconsistently with the general rule several creditors may by simple contract compound their claims against a common debtor and bind themselves effectually to discharge the balance due them; but it is equally clear that the general rule is almost universally settled law, and that it is regarded by the courts not as an exceptional doctrine but as an exemplification of the general principle that an act which is neither legally detrimental to the promisee, nor legally beneficial to the promisor; is insufficient consideration to support a promise. The extent of the changes which have been made by statute or decision in various jurisdictions of the doctrine that payment of part of the debt is insufficient to support an agreement to discharge the whole debt, is not great. In only a very few jurisdictions, the law has been changed by decision.46

45 See infra, Sec. 131.

The decisions where some performance to which the promisee was bound to the promisor other than the payment of a debt (as for instance completing a building or other piece of work) is given as the consideration for a promise are to the same effect. Almost uniformly they deny the validity of such consideration.47

The result, therefore, of the three classes of cases to which Professor Ames appeals, is that in one of the groups (the third), the decisions are necessarily opposed to this theory. In the other two groups the conclusion reached by a large proportion, perhaps the majority of courts, cannot be reconciled with his definition; and those decisions which support the validity of the consideration are rested by the courts on other grounds than those suggested by him; and these other grounds are harmonious with the decisions on the law of consideration generally, and with the definitions customarily given by the courts.

Since, therefore, a due regard for judicial authority prevents one from believing the law to be that any act requested may serve for the consideration of a unilateral contract, it seems unreasonable, even if there were no other difficulty, to hold that the making of any promise would be sufficient to support a counter-promise. Moreover, there are further difficulties precluding assent to such a theory. While it would explain more simply than any other the fact that a voidable or unenforceable promise is sufficient consideration to support a counter-promise, the argument goes too far, for it would also follow that a void promise or an illusory promise would be sufficient consideration; but the law, of course, is otherwise. A promise which is void is insufficient consideration,48 and the cases

46See infra, Sec.Sec. 120 et esq-

47 See infra, Sec. 130.

48Thus the promise of a married woman under disability to contract is sot sufficient to support a counter-promise. Smith v. Homer, 15 East. 607, 610; Shaver v. Bear River, etc., Co., 10Cal. 396; Warner v. Crouch, 14

Allen (Mass.) 163; Andriot v. Lawrence, 33 Barb. 142. See also Howe v. Wildes, 34 Me. 663; Warren v. Caetello, 109 Mo. 338, 19 S. W. 29, 32 Am. St. Rep. 669; Henrici v. Davidson, 149 Pa. 323, 24 Atl. 334; Williams v. Graves, 7 Tex. Civ. App. 356, 26 S. W. 334; Shenandoah Co. p. Dunindicate no inquiry on the part of the courts whether the party giving a promise in exchange for the vold promise knew or did not know the facte which made void the promise he received.49

Illusory promises also, on Professor Ames's theory, would furnish sufficient consideration if requested as the exchange for a counter-promise, and that they are frequently so requested with intent to make a bargain cannot be sucessfully disputed. A contractor or seller is often so eager to obtain work, or a sale, that he will gladly subject himself to an absolute promise in return for one which leaves performance optional with the other party. This is most commonly illustrated in agreements to buy or sell goods where the quantity is fixed by the wishes of one of the parties. But a promise to buy such a quantity of goods as the buyer may thereafter order,50 or to take goods "in such quantities as may be desired," 51 is insufficient consideration for a counter-promise.

Finally, the whole reasoning of the cases in regard to consideration is opposed to any theory that mutual promises are universally sufficient consideration for one another. There would be no occasion for all the discussions in the opinions. It would be enough for the court to say, without more, that the parties had made mutual promises.52 lop, 86 Va. 346, 10 S. E. 230. But see Chamberlin v. Robertson, 31 Ia. 408. And wherever the promise of an infant is void and not merely voidable, it is not sufficient. Johnson v. Rockwell, 12 Ind. 76, 81; Cannon v. Als-bury, 1 A. K. Marsh. (Ky.) 76, 77, 10 Am. Dec. 700.

49See Meyer v. Haworth, 8 A. & E. 467. If lack of knowledge of these facts made a difference, it might be urged that mistake rather than lack of consideration was the reason for the invalidity of the bargain.

50Great Northern Ry. v. Witham, L. R. 9 C. P. 16; Cold Blast Transportation Co. v. Kansas City Bolt Co., 114 Fed. 77, 52 C. C. A. 25, 57 L. R. A. 606; T. B. Walker Mfg. Co. v. Swift, 200 Fed. 529, 119 C. C. A. 27.

51 American Cotton Oil Co. v. Kirk, 68 Fed. 791; Columbia Wire Co. v. Freeman Wire Co., 71 Fed. 302; Raf-olovits v. American Tobacco Co., 29 Abb. N. C. 406, 23 N. Y. S. 274; Hoffman v. Maffioli, 104 Wis. 630,80 N. W. 1032, 47 L. R. A. 427. See infra, Sec.104.

52In White v. Bluett, 23 L. J. (N. S.) Ex. 36, Alderson, B., having this in mind said of a bilateral agreement: "If this agreement were good, there could be no such thing as a nudum pactum. There is a consideration on one side, and it is said the consideration on the other side is the agreement itself. If that were so there could never be a nudum pactum." See also Denver Pressed Brick Co. p. Le Fevre, 25 Colo. App. 304, 138 Pac. 434.