In certain exceptional cases, however, considerations which are not valuable are nevertheless accepted as good and sufficient by the law. Thus the existence of a legal obligation may be a sufficient consideration for a promise to fulfil it; as in the case of a promissory note or other negotiable instrument given for the amount of an existing debt. At one time it was supposed to be the law that a merely moral obligation was in the same manner a sufficient basis for a promise of performance, and though this is no longer true as a general proposition, certain particular applications of the principle still survive, while others have but recently been abolished by statute. Thus a promise made by a discharged bankrupt to pay a creditor in full was until recently a binding contract, because made in consideration of the moral obligation which survives the legal indebtedness of an insolvent. For the same reason, a promise made after majority to pay debts incurred during infancy was binding, until the law was altered in this respect by recent legislation. Similarly a promise to pay a debt barred by prescription is legally valid even yet, the consideration being the moral (and imperfect legal) obligation which survives the period of prescription.
With respect to the rational basis of this doctrine, it is to be noticed that the requirement of consideration is not absolute, but conditional on the absence of a certain formality, namely that of a sealed writing. Form and consideration are two alternative conditions of the validity of contracts and of certain other kinds of agreements. It may be surmised, therefore, that they are founded on the same reasons and fulfil the same functions. They are intended as a precaution against the risk of giving legal efficacy to unconsidered promises and to the levities of speech. The law selects certain reasons and inducements, which are normally sufficient for reasoned and deliberate consent, and holds valid all agreements made on these grounds, even though informal. In all other cases it demands the guarantee of solemn form. There can be little doubt, however, that our law has shown itself too scrupulous in this matter; in other legal systems no such precaution is known, and its absence seems to lead to no ill results.
Although the doctrine of consideration, in the form received by English law, is unknown elsewhere, it is simply a modification of a doctrine known to the civil law and to several modern systems, more especially to that of France. Article 1131 of the French Civil Code provides that: “L’obligation sans cause, ou sur une fausse cause, ou sur une cause illicite, ne peut avoir aucun effet.”[[319]] This cause or causa is a synonym for consideration, and we find the terms used interchangeably in the earlier English authorities.[[320]] There is, however, an essential difference between the English and the Continental principle. Unlike the former, the latter never rejects any cause or consideration as insufficient. Whatever motive or inducement is enough to satisfy the contracting parties is enough to satisfy the law, even though it is nothing more than the causa liberalitatis of a voluntary gift. By an obligation sans cause, or contract without consideration, French law does not mean a contract made without any motive or inducement (for there are none such), nor a contract made from an inadequate motive or inducement (for the law makes no such distinctions), but a contract made for a consideration which has failed—causa non secuta, as the Romans called it. The second ground of invalidity mentioned in the Article cited is the falsity of the consideration (falsa causa). A consideration may be based on a mistake, so that it is imaginary and not real; as when I agree to buy a horse which, unknown to me, is already dead, or a ship which has been already wrecked, or give a promissory note for a debt which is not truly owing. Finally a causa turpis, or illegal consideration, is as fatal to a contract in French and Roman law as in English.
In English law the failure of consideration (causa non secuta) and its unreality due to error (causa falsa) are grounds of invalidity, only when the absence of such failure or error is expressly or impliedly made a condition of the contract. In a contract for the sale of a chattel, for example, the present existence of the chattel is an implied condition of the validity of the sale.[[321]]
SUMMARY
| Vestitive Facts | Investitive Facts or Titles. | Original Titles. | Creation of Rights. |
| Derivative Titles. } | Transfer of Rights. | ||
| Divestitive Facts. | Alienative Facts. } | ||
| Extinctive Facts. | Destruction of Rights. | ||
| Vestitive Facts | Acts of the law. | ||
| Acts in the law. | Unilateral. | ||
| Bilateral, or Agreements. | |||
| Agreements. | 1. Contracts—creating rights in personam. | ||
| 2. Grants—creating rights of other descriptions. | |||
| 3. Assignments—transferring rights. | |||
| 4. Releases—extinguishing rights. | |||
| Grounds of the operation of agreements. | |||
| Comparison of agreement and legislation | |||
| Agreements. | Valid. | ||
| Invalid. | Void. | ||
| Voidable. | |||
| The causes of invalidity. | |||
| 1. Incapacity. | |||
| 2. Informality. | |||
| 3. Illegality. | |||
| 4. Error. | |||
| 5. Coercion. | |||
| 6. Want of consideration. | |||
CHAPTER XVII.
LIABILITY.
§ 125. The Nature and Kinds of Liability.
He who commits a wrong is said to be liable or responsible for it. Liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wrong. This vinculum juris is not one of mere duty or obligation; it pertains not to the sphere of ought but to that of must. It has its source in the supreme will of the state, vindicating its supremacy by way of physical force in the last resort against the unconforming will of the individual. A man’s liability consists in those things which he must do or suffer, because he has already failed in doing what he ought. It is the ultimatum of the law.[[322]]
The purpose of this chapter and of the two which follow it is to consider the general theory of liability. We shall investigate the leading principles which determine the existence, the incidence, and the measure of responsibility for wrongdoing. The special rules which relate exclusively to particular kinds of wrongs will be disregarded as irrelevant to the purpose of our inquiry.