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known the zest of the exercise of genius may still find happiness, notwithstanding disillusionment and emotional letting down. The late E. P. Whipple in his essay on Words. worth pointed out that in a revision of his works published late in his life there was omitted from the poem, “Louisa," a delicate conceit that her smiles as they passed away
“Are hidden in her eyes.”
The critic was doubtless right in suggesting a loss of power on the poet’s part to perceive the beauty of the line, and it may be taken as typical of the atrophy of fancy and sentiment, when “ youth, the dream departs * and “takes something from our hearts,” that “never comes again.” Lyrical poetry and certain forms of fanciful and sentimental prose are essentially an expression of the vividness and intensity of early years. There are of course exceptional poets and exceptional moments of aged poets. But as a rule it is better to cease production, not, as Rossini is said to have done, from sheer laziness, but, as Thomas Bailey Aldrich did, from self-knowledge and self-control. If Donald G. Mitchell could fill out contented and useful years, though the basis of his permanent fame had long gone out, the suicidal ennui of an average person is at least aggravated egoism, even though the deed do not amount to cowardice through running away from definite responsibilty or duty, WILBUR LARREMORE, New York City.
CONSIDERATION AND MOTIVE AS ESSENTIALS TO A BINDING AGREEMENT.
In business circles a strong sentiment prevails that an agreement once entered into and expressed in due form should be binding without any consideration being given or received therefor. The giving of a nominal consideration for the purpose of legalizing a promise is not favourably received. It impresses the average man as archaic. And on whether or not this notion is correct, depends the future of the doctrine of consideration. The doctrine has more than once been subjected to criticism, and its right to existence has been questioned. Its historical and theoretical significance have been ably examined but its merits and demerits from a practical standpoint have been neglected. It is the opinion of the writer that the common-law doctrine of consideration, viewed in connection with motive is a living force in the law of contracts and has proved itself superior to all other known methods of evidencing an intention to enter into a legally enforceable agreement. At the outset it is important to distinguish between moral obligations and legal obligations. All promises should be fulfilled but this does not imply that the law should enforce them. A promissory note should be paid even though no value was given for it. But payment should not be compelled by law even though the opinion and practices of the business world are to the contrary. A naked promise, even when in the form of a writing is not a proper subject for legal sanction. It is an every day event for some one person to desire to become legally obligated to another for a sum of money; for which obligation such person wants, and will take nothing in return. Accordingly he writes out and signs a promise to pay, which he delivers to the other; and thereupon all goes well until the promisor begins to weary of his promise, and declines to pay. These agreements rarely get into Court for the reason that a lawyer will invariably discourage a suit unless there is a chance of working in a consideration edgewise. Now whenever such a state of affairs exists it is quite evident that the promisor has some sort of motive for entering into the promise; and he naturally feels that if he promises at all he wants that promise to have legal force. He wishes to incur a legal obligation. By the common law, of course, no legal effect is given to such a promise unless it is supported by some consideration either given by the promisee or received by the promisor; or the agree. ment is under seal. The most worthy motive imaginable can not render a gratuitous promise binding in our law." The question then, is, should the law permit a legal liability to attach to such a gratuitous promise, or should it require that something of value be given or done for the promise before granting it recognition; and the answer is that the law should permit whatever universal custom demands, provided that it is warranted by long centuries of legal experience. To illustrate the transaction referred to: A is indebted to X for $1,000 but is compelled, we will say, to leave town for parts unknown. B however, who is a friend of A's and desirous of helping him in every way possible, wishes to become responsible to X for A's debt; and this for the reason that he does not care to have it appear that A is unscrupulous and has departed secretly for the purpose of avoiding payment; and for the further reason that he would like to see X get what is justly due to him. Such are his m0tives; and accordingly he goes to X, states the case, and ends by giving him a written promise to pay $1,000. This is done in the best of faith; and yet it is very doubtful whether both parties intend or believe that promise to have legal force. This kind of transaction is usually accomplished through the medium of a promissory note, though sometimes by a written agreement starting off with the stock phrase: “In consideration of one dollar to me in hand paid, etc.”— no dollar in fact having been paid, neither of which have any legal efficacy whatever, although it is invariably the opinion that a promise to pay in the form of a note is good notwithstanding no consideration is given therefor; and when they are held bad both parties to the transaction receive a shock. The law, however, is clear. If the promisee * Bearing in mind that this argument is concerned with such cases only as are mentioned above, and where no other legal consideration exists; and that as to such cases the requirement that some consideration be actually given for the promise, is not simply a technical and useless formality but is the kind of evidence the had given something of value, however slight, for the promise, say a dollar, the promise would have been legally enforceable, because even a small consideration presently received will support a promise to pay an unlimited amount in the future. Of course, if in the case assumed, the parties had been aware of this fact they might gladly have exchanged the dollar, but they did not know of this legal sophistry, and so go without a remedy. And the question that naturally arises is: what vital force is there in this doctrine of consideration that imparts such life and character to an otherwise unenforceable promise, and gives it some standing in Court. Is it possessed of any inherent merit, or is it simply the devise of lawyers concocted to thwart the intentions of the unwary.
At common law, agreements under seal were of course binding without any consideration. The affixing of the seal was a formality that shewed an intention to become bound, and dispensed with the necessity of consideration; or as it was sometimes said, consideration was conclusively presumed. The obligor was legally bound because the formality of sealing the instrument was conclusive evidence of his intentions in the matter. The fact of importance is the formality of execution. This formality, however, has long since degenerated into a fizzle, until it has come about that to-day, the seal is in fact little more than a legal curiosity. In New York, seals have been effectually done away with by section 840 of the Code of Civil Procedure which provides that: “A seal upon an executory instrument, hereafter executed, is only presumptive evidence of a sufficient consideration, which may be rebutted, as if the instrument was not sealed.” This provision gives such instruments the same status as that of negotiable paper: consideration is presumed but must be proved.
The common law theory of sealed instruments was good. Liability attached when the prescribed legal form was used. The formality indicated the intention to become bound, and the intention sufficed. This in fact is all that reason demands: first, the intention, then the evidence thereof. If the formality of a seal had remained a formality in fact there would be something to say for sealed instruments; but, as convincing evidence of intention, a seal to-day, is utterly worthless. Some other evidence of this fact is therefore essential, and that evidence appears in the common-law doctrine of consideration.
vol. xxxii.I. C.L.T.-38
An analysis of the case just mentioned will disclose first, that motive is of the very essence of a binding agreement; and second, that there should be present unmistakable evidence of intention to become bound. The first of these conditions is easily gathered from the surrounding circumstances, and would be evidenced in a variety of ways; but the second requires that some prescribed form be gone through by the promisor in order that the promise may be clothed with a serious aspect; and that form, it seems, should consist of more than a mere writing, at least before the law will take cognizance of the promise.
A century and a half ago Lord Mansfield held out for the abolishment of consideration altogether. Said he: “I take it that the ancient notion about the want of consideration was for the sake of evidence only, for when it is reduced into writing as in covenants, specialities, bonds, etc., there was no objection to the want of consideration.” But it is believed that this is going too far. Is it reasonable that the evidence of intention should be gathered from a mere written promise. Reason somehow says that it is not. It is not a sufficient guaranty of intention to incur a real live obligation; it is too easily entered into to be taken seriously in a Court of justice. The teachings of experience go to shew that a mere writing is insufficient to impress the promisor with the seriousness of his undertaking. Would then the acknowledgment of a promise, say, before a notary be a sufficient indication of intention. No. It is believed that it would not, for that method too, as in the case of the seal would degenerate into a useless formality—and so it goes. In what other ways, then, may intention be manifested.
The “stipulation " of the civil law is of interest in this connection. By it a promise may become binding without consideration if the required form of question and answer be followed. “All that is essential is that the obligatory consensus shall be expressed in due legal form by a question on the part of the creditor and a corresponding answer on
*Pillans v. Van Mierop, 3 Burrow, 1663.