Unless it can be shown that the statements thus referred to are opposed to actual decisions, or at least that there are plainly inconsistent judicial statements in the books, these quotations must be regarded as accurate statements of the law. There seem no judicial statements inconsistent with them. So far as decisions go, the cases are few where an actual difference of result would be produced, according as one accepts Sir Frederick Pollock's definition, or Mr. Leake's. The most sharply denned difference is in regard to the third party cases, which have been more discussed than any others relating to the law of consideration.
57Bolton v. Madden, L. R. 9 Q. B. 65,56.
58Schweider v. Lang, 29 Minn. 254, 13 N. W. 33, 43 Am. Rep. 202.
59L.R. 10Exch. 153.
60 To have stated the matter exactly, the words "or undertaken" which are contained in the last clause of the definition, should also have been included in the first clause.
"A promise given in consideration and because of the fact that another promise is given, is binding provided the promise given is for the performance of some act which if executed would be a sufficient consideration for an obligatory contract." Elliott, Contracts, Sec. 231. "A promise to do an act, or forbearance from doing an act, is just as valuable consideration for a promise as the act or forbearance would be." 9Cyc. 323.
Under the definition of Sir Frederick Pollock and Professor Langdell a bilateral agreement between 8. and C. by which B. promises to do something which he was previously legally bound to do by contract with A., is a valid contract, since assuming B.'s promise to C. to be binding, it imposes a new detriment on B., namely, liability to a new person in case of non-performance of the promised act; though both Sir Frederick Pollock and Professor Langdell contend that had B. performed the set in question at C.'s request instead of promising to perform it, the previous obligation to A. would have prevented the performance from being a detriment in law to B., and no new contract would be formed.
Under Mr. Leake's definition, no distinction is possible between cases where the second agreement is bilateral and where it is unilateral. If the performance is sufficient consideration for a contract, the promise of performance is likewise sufficient. If actual performance is sufficient, so is a promise of performance. And the authorities make no distinction.62
Another class of cases which is inconsistent with the theory which I have attributed to Sir Frederick Pollock and Professor Langdell, consists of bilateral agreements, in which one promise is a promise to pay a debt. It is well settled that such agreements are not binding.63
These cases are decided on the ground that the performance of the promise to pay the debt involves no legal detriment to one party or legal benefit to the other; and yet the promise if binding would involve a detriment since it extends the period of the Statute of Limitations. The same argument is applicable to forbearance and promises of forbearance of a groundless suit against a third person, especially in jurisdictions where forbearance to bring a groundless though honest claim against the promisor is held insufficient consideration. There is nothing in the cases relating to this matter to warrant the supposition that the law is different when the suit to be forborne is against a third person, and the legal duty to forbear is therefore not to the promisee,64 and if a promise of similar forbearance to sue the promisee would be insufficient, the promise to forbear to sue a third person would also be insufficient consideration.65 Yet such a promise if binding would subject the promisor to a new duty. This may be followed with a similar argument regarding forbearance to commit a tort against a third person. It is of course certain that such a promise is not a valid consideration. This must be accounted for under the view now criticised as resting solely on public policy, but it has generally been supposed that such an agreement also lacked consideration.66 A promise to receive a pure benefit also which under the theory in question would be sufficient consideration cannot be so regarded.67 A mutual agreement to rescind a unilateral obligation, which is much the same thing as a promise to give, is, it is well settled, ineffectual.68
62 See infra, Sec. 131.
63 See infra, Sec. 120.
Finally, Mr. Leake's test seems the better of the two in question, because, as already said, it seems intrinsically unreasonable that a promise of an act should ever be regarded by the law as greater value than actual performance of that very act. As the matter has been well put,69 the contrary view involves the assertion "that a bird in the hand is worth less than [the same] bird in the bush." 70