This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The doctrine of consideration is in its present form and extent a late arrival in the law administered in England by the king's courts. The reason for this, like so much history of English law, is to be found in the forms of action by which relief had to be sought in the king's courts. The action of debt was always based upon a claim for something of value received by the defendant from the plaintiff, for which the plaintiff sought compensation.1 Consideration was therefore necessarily present in every such action, as the foundation and basis thereof. Its inevitable appear-
1"Both parties being present in court, the plaintiff may found his demand on a variety of causes. His debt may arise either upon a lending, or a letting out, or a deposit, or from some other just cause inducing a debt."
Glanville Book X., ch. III. ("Ex causa mutui, aut ex causa venditionis, aut ex commodato, aut ex locato, aut ex deposito, aut ex alia justa deliendi causa.") ance prevented discussion of its nature and necessity. Its existence was assumed without discussion.2
The cases in which the action of covenant is first allowed were all cases in which a valuable consideration in fact existed. This consideration was not of itself enough to induce the king's courts to enforce the transaction. If the case was not one in which the action of debt would lie, the formal seal had to be affixed in order to confer jurisdiction upon the king's courts. At the same time, there is nothing in the decisions or text-books to make it appear that the courts had any intention of enforcing gratuitous promises, even though under seal.3 The formula that the seal makes the obligation was repeated so often and so long that it was finally taken literally, and when gratuitous promises under seal were presented for adjudication, it was held that consideration was unnecessary and immaterial, because the courts enforced the contract under seal as a formal contract by reason of the form in which the promise was made.4