Novations and offers of novation must also be distinguished from the other legal relations with which this chapter deals. The aim of the novation is to substitute for an existing obligation another right. To work a novation, it is not enough that a promise has been made to the original debtor to pay the debt; nor does the assent of the creditor help the matter unless an offer was made to him. The theory of novation is that the new debtor contracts with the old debtor that he will pay the debt, and also to the same effect with the creditor, while the latter agrees to accept the new debtor for the old. A novation is not made out by showing that the substituted debtor agreed to pay the debt. It must appear that he agreed with the creditor to do so. Moreover, this agreement must be based on the consideration of the creditor's agreement to look to the new debtor instead of the old. The creditor's assent to hold,the new debtor liable is therefore immaterial unless there is assent to give up the original debtor.20
Sec. 354. Promises to one who did not furnish the consideration. Promises for the benefit of a third party must also be distinguished from promises to one who has not given the consideration for the promise. It is sometimes laid down in the books that consideration must move from the promisee, and it is occasionally supposed that infringement of this rule is the basis of the objection to allowing an action by a third person upon a promise made for his benefit. This is not the case. In such promises the consideration does move from the promisee, but tie beneficiary who seeks to maintain an action on the promise is not the promisee. Consideration, therefore, does not move from the plaintiff, and this fact has been thought a fundamental objection;21 but the rule that consideration must move either from the plaintiff or from the promisee, so far as it exists, is purely technical, and in a developed system of contract law there seems no good reason why A should not be able for a consideration received from B to make an effective promise to C. Unquestionably he may in the form of a promissory note,22 and the same result has been generally reached in the United States in the case of an ordinary simple contract.23
20See infra, Sec.Sec. 1865 et seq., also an article on Novation by Professor Ames, 6 Harv. L. Rev. 184.
21See, e.g., Hare on Contracts, 146.