Now that we have come so far, I imagine that we cannot very well avoid touching upon a delicate question which has but recently been well formulated, and which we shall treat by a method freer from prejudice and, I trust, also more fruitful than that which has heretofore been employed. Is not the autonomy of individual will a part of our positive law elsewhere as well as where it is exhibited in the making of a contract, properly so called? Is it not even more distinctly present in legal acts that issue from a single will affecting living persons? Or, to employ a more common and at the same time clearer phrase, may not a simple promise, expressing but the will of one party, become the basis of a legal obligation, aside from all questions of acceptance?
If first we turn, for the solution of this question, to our formal sources of law as they are now actually in force, we shall have to admit, I think, that these do not take us very far.
Of clearly established customary law, I believe, we cannot speak at all, in modern days, so far as this subject in any general aspect is concerned. As for the written law, it would seem pretty difficult to find therein any positive denial of the legal effectiveness of a one-sided act of will, even aside from testamentary dispositions. We need not speak of certain declarations with legal consequences, such as the legitimization of an illegitimate child, the acceptance of succession, the renunciation of succession, or of community of property [between husband and wife], or the offer of payment of recorded mortgages by a new purchaser of the land-all of which transactions imply in their very nature that there is but one party to them. Our law knows another class of such acts which all have the characteristic that one person becomes richer by the independent will of another-such as, for instance, the renunciation of various rights, like a usufruct, a mortgage debt, and various sorts of easement. In these cases the statute might easily have made the effect of the act dependent on acceptance by the beneficiary. I know the answer will be that these are exceptions to the ordinary rule, which were intended as such by the legislature, as also in the case of occupation and analogous acts; some persons will even go so far as to declare it impossible that the act of one person, done with that very purpose in view, and with the intention of being bound thereby, can create an obligation on the part of another person. However, if one were to inquire into the reason for this common opinion or the explanation for this widely spread prejudice, he would find it difficult to discover anything except that there is no provision in our statutes expressly authorizing the creation of a right by the one-sided act of an individual, and that such silence is sufficient to prohibit. The implied reasoning may perhaps be expressed still more exactly in this fashion: the Civil Code, by enumeration, limits the sources from which obligations may be derived.6 This enumeration does not mention a one-sided act of will, consequently such an act cannot be the source of an obligation. I venture to say that such arguments may appear quite incontestable, and yet they do not convince me. I need not discuss the point that perhaps a one-sided promise may after all be contained in one of the enumerated classes of section 1370, which are decidedly vague and general. I should first like to know on what ground, in our modern law, the assertion can be based that the statute enumerates all the sources from which an obligation may spring and excludes all others. In other words, as I deny both the major and the minor premise of the syllogism held up to me, I must have serious doubts about the conclusion.
Nor would it be possible to aid or fortify the above argument by saying that the theory of the Code which bases contracts on the consent of the parties7 necessarily excludes the idea that a simple promise can bind the promisor even before it has been accepted. We may admit that the legislature intended such a result under ordinary circumstances in the case of an offer to make a contract; that, however, amounts merely to this,-that in the absence of ulterior reasons, such an offer is not binding. One cannot legitimately draw therefrom the conclusion either that the quality of not being binding is essential to the very nature of such an offer, or, still less, that under all circumstances whatsoever a declaration of intention to bind oneself, as long as it remains a mere promise, is ineffective and inoperative. Briefly, from a strictly legal standpoint and according to the rules of sane interpretation, if one does not want to go beyond the thought and intention of the legislator, he must hold that the latter, never having thought of the question raised by us, cannot have intended to solve it. Or even we might admit that he must be assumed to have thought of it and decided it negatively in the recesses of his mind and subconsciously, as it were, because he must have been under the influence of a historical tradition. That, however, is rather vague in itself, and such an unexpressed and secret meaning cannot be held to have any force for the interpretation of the rule. Consequently, as long as both the statute and the customary law are silent on the point, we must solve the difficulty by the method of free decision on the basis of scientific inquiry. Now, when we have thus been authorized to take possession of the field, shall we unhesitatingly answer the question in the affirmative, as is the wont of bold reformers, possibly by dwelling upon the unlimited freedom of the human will, the sovereignty of individual volition? Or perhaps by insisting on the needs of society under the new conditions created by modern civilization, which demand imperiously that everybody shall be allowed as he will to take advantage of promises by which another has chosen to bind himself by his free will? That would be, in my opinion, to go far beyond the mark, and to expose our new idea to a shock from which it would never recover. The most one can really say on this point in a general way is, I believe, that nothing in our system of positive law stands in the way of holding a one-sided promise binding, and that the binding nature of such a promise even follows, prima facie at least, as a very natural consequence of that principle of the autonomy of the will which is the outcome of our modern conditions of society. At the same time, there is also no reason why absolutely every obligation of this kind should be upheld. Consequently, and because in practice the question will always be what particular promises of this kind ought to be upheld as binding, it will never be possible to find the answer without a close investigation of the dangers and advantages of each particular promise of this nature.