It is often stated as if it were a requisite in the formation of contracts, that there must be mutuality.43 This form of statement is likely to cause confusion and however limited is at best an unnecessary way of stating that there must be valid consideration. In unilateral contracts there is never mutuality of obligation; 44 and in bilateral agreements though it is necessary that there shall be such a promise on each side as will furnish valid consideration, to express the idea by saying that mutuality is necessary is sure to cause confusion with the use of the same word by courts of equity.45 Lack of mutuality, as that phrase is used by courts of equity, is not necessarily any objection to the existence of a contract. It is said that equity will not give specific performance to a contract unless there is mutuality; that is, unless the plaintiff's own promise so far as it is still unperformed is capable of specific enforcement. It may not be thus capable for various reasons which will not invalidate the contract.46 Sometimes the question involved where mutuality is discussed is whether one party to the transaction can by fair implication be regarded as making any promise;47 but this is simply an inquiry whether there is consideration for the other party's promise. The particular error which is traceable to the misleading use of the word mutuality as a requirement for the formation of contracts, is a tendency observable in some cases to hold a contract invalid because the obligation undertaken on one side is not commensurate with that undertaken on the other. Especially where one party is given an option, not accorded to the other, of discontinuing or extending performance or of cancelling or renewing the contract or of determining the extent of performance, confusion has arisen. If the option goes so far as to render illusory the promise of the party given the option, 48 there is indeed no valid consideration, and therefore no contract, but the mere fact that the option prevents the mutual promises from being coextensive does not prevent both promises from being binding according to their terms.49 A court of equity might indeed refuse to enforce spe-
286 111. 536, 122 N. £. 160; Best v. Thiel, 79 N. Y. 15; Lyons v. Benney, 230 Pa. 117, 79 Atl. 250, 34 L. R. A. (N. 8.) 105; Dominion Trust Co. v. Ridall, 249 Pa. 122, 94 Atl. 464.
43A few illustrations of this use from recent eases may be found in Hazelhurst Lumber Co. u. Mercantile Ac. Co., 166 Fed. 191; Jenkins v. Anaheim Sugar Co., 237 Fed. 278; Ellis v. Dodge, 237 Fed. 860; Marin Water Ac. Co. v. Sausalito, 168 Cal. 587, 143 Pac. 767; Ayer & Lord Tie Co. p. O'Bannon, 164 Ky. 34, 174 S. W. 783; Killebrew v. Murray, 151 Ky. 345,151 S. W. 662; Hudson v. Browning, 264 Mo. 58, 174 S. W. 393; Grossman v. Schenker, 206 N. Y. 466,100 N. E. 39; Great Northern R. Co. v. Sheyenne Tel. Co., 27 N. Dak. 256, 263, 145 N. W. 1062; Texas Produce Exchange v. Sorrell (Tex. Civ. App,), 168 8. W. 74.
44 In Whittle d. Frankland, 2 B. A S. 49, 55, Crompton, J., said:-"1 never could understand that mutuality doctrine. Take the case of a contract of guarantee; the only question there is, was there any consideration to support the contract?" See discussion of the matter in Rague v. Publishing Co., 164 N. Y. App. D. 126, 149 N. Y. S. 668; Western Newspaper Union v. Kit-chel, 201 Mich. 121, 166 N. W. 1021. Nevertheless mutuality is not infrequently stated to be a "cardinal requirement" of contracts, as it was in the opinion of the court in Oakland Motor Car Co. v. Indiana Automobile Co., 201 Fed. 499, 504, 121 C. C. A. 319.
45 Various shades of meaning given to the word are noted by Professor Gilbert in 4 Calif. L. Rev. 122.
46 See infra, Sec. 1433 et seq.
47 See aupra, 60.
48 See supra, Sec.Sec. 43, 104.
49 Such contracts were therefore enforced in Pilkington v. Scott, 15 M. & W. 667 (employment for seven years with right in employer to discharge on notice of a month or wages for that period). Central Trust Co. v. Chicago Auditorium Assoc., 240 V. S. 681, 36 S, Ct. 412, 415, 60 L. Ed. 811 (contract with a hotel for baggage and livery privileges for fire rears with the right reserved to the hotel to cancel on six months' notice); McCall Co. v. Wright, 133 N. Y. App. D. 62, 117 N. Y. S. 776, 198 N. Y. 143, 91 N. E. 516, 31 L. R. A. (N. S.) 249 (employment for six years with right in employer to discharge on notice of thirty days); Realty Advertising Ac. Co. v. Engfebert Tyre Co., 151N. Y. S. 886, 89 N. Y. Misc. 371 (advertising contract with right in plaintiff to caned on five days' notice); Tebeau v. Ridge, 281 Mo. 547, 170 S. W. 871, L. R. A. 1916 C, 367 (option in lease giving lessee right to purchase; citing other cases to the same effect). See also Marin Water Ac. Co. v. Sausalito, 168 Cal. 687, 143 Pac. 767; United States Expansion Bolt Co. v. Manner-stein, 181 N. Y. App. D. 790,169 N. Y. S. 244. On the other hand, in Tweedie Trading Co. v. Parlin & Orendorff Co., 204 Fed. 60, 122 C. C. A. 364, in a suit in admiralty, a shipping contract was held invalid which gave the carrier an option as to when and what it would cany during most, but not all, of the year, during which the contract was to be in force. See also Killebrew v. Murray, 151 Ky. 345, 151 S. W. 663; Owens v. Corsicana Petroleum Co. (Tex. Civ. App.), 169 S. W. 192.
Some courts, too, owing to a mistaken view as to the requirement of mutuality, have been led to hold that a promise to buy from the promisee all goods of a certain kind which the promisor needed or should buy from any one, is not a sufficient consideration because there is no engagement to buy cifically such a contract if it seemed oppressive, but to deny its legal validity is to contradict directly the numerous cases which hold adequacy of consideration is a matter exclusively for the decision of the parties.50 The large class of cases where one party to a contract may reject performance which is not satisfactory to him,51 or to his architect or engineer,52 while no corresponding privilege is given to the other party, is itself enough to establish what should need no argument, that the obligations of the parties to a contract need not be correlative or coextensive.