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the part of the debtor. Given these conditions the contract is valid and actionable on the ground of the form in which the words are put, and it is immaterial whether the debtor received any consideration for his promise or not. All that the creditor need prove is that, as a matter of fact the stipulatio was concluded. The debtor's obligation rests on the verba and on them alone.”
It cannot be said, however, that the question and answer form is any more conclusive on the fact of intention than a written promissory note. And even if the catechising process were extended somewhat it is believed that this too would degenerate, and would in the course of time come to consist of a formal printed blank with both questions and answers printed thereon; binding when signed by the obligor, but most unsatisfactory as proof of intention. This question of intention is in fact everything. Intent itself, is an ever living force, and evidence of that intent must be of a like nature. Just so soon as this evidence assumes the stereotyped form its usefulness is at an end.
When a Court compels a man, in pursuance of his promise, and against his will, to pay $1,000 or $100,000 as the case may be, to another, for which promise he has received absolutely nothing, that Court wants to be presented with more evidence of unqualified intention than a mere paper writing which may have been given without much thought. There may have been the very best of motives, but that itself is insufficient in view of the fact that the obligor is objecting to pay. Consideration, however, very effectively supplies this need. The obligor has received something, and for this he has given his promise. That is enough: the Court is convinced, and will order accordingly. It matters not how small the consideration is, and our law to-day holds to the view that the smallest consideration (provided it be of some value in the eyes of the law) presently given, will support the largest of promises to pay in the future. The consideration, moreover, is deemed to be full compensation for the promise. The Court will not look into the motive—so it says; but as a matter of fact it does, unconsciously. Such a rule works well enough in cases where the consideration given for the promise is large enough to be a motive in itself, but in cases where the consideration is merely nominal, and given for the purpose of evidencing intention, the Court must of necessity look into the motive.”
* Sohm's Institutes of Roman saw (Ledlie), Page 401.
In the early days of assumpsit the consideration was required to be a substantial equivalent for the promise, but as time went on more liberal notions came to be entertained by the Courts, until it has come about that to-day if anything of value be given or done in exchange for the promise, it is sufficient to render it enforceable, Consideration and motive, it is said, having nothing in common. If a consideration (no matter how small) has been given the Court will enforce the promise to pay the largest amount in the future, without looking into the motive. Langdell expresses it thus: “So a promise may be made for a nominal consideration, i.e., the consideration may be given and received for the mere purpose of making the promise binding; and in all such cases there must of course be some motive for the promise besides the consideration. It must not be supposed, however, that motive as distinguished from consideration, can constitute any element of a contract, or that it is a thing of which the law can strictly take any notice. On the contrary as every consideration is in theory equal to the promise in value, so it is in theory the promisor's sole inducement to make the promise. As the law cannot see any inequality in value between the consideration and the promise, so it cannot see any motive for the promise except the consideration.”
It is submitted, however, that while the law may look at it in this way the Court does not. When the consideration is in itself a substantial equivalent for the promise a susficient motive appears from the consideration alone; but when the consideration is nominal merely, the Court while saying that it disregards motive, in fact scans very closely the judicial horizon for a motive of some sort, and if this intangible quality is present it enforces the contract. But if, on the other hand there appears to be no motive whatever for the promise, fraud inevitably looms up and the contract is declared void. In reality, however, it may be that actual fraud is entirely wanting, but no Court would compel a man to pay (say) $100,000 where he had received but $1 for the promise, if no motive existed for such a promise, motive being always regarded as a variable quantity, and depending on the particular case. It may consist of an infinite variety of reasons, such for example as friendship, past favours, intent to please and so on. But probably no one would make a promise so disproportionate in amount to his worst enemy. An entire lack of motive of necessity savours of fraud or duress; and it is in fact immaterial whether or not it is called fraud, duress or lack of motive; the contract is void.
“The principle of the civil law is summed up in the case of Mouton v. Voble, 1 La. Ann. 192, thus “Requiring a small pecuniary consideration to support an agreement, is a mere fiction which the civil law has never adopted. . . . In contracts of mutual interest, the cause of the engagement is the thing given, or done, or engaged to be given or done, or the risk incurred by one of the parties: and in contracts of beneficence, the liberality which one of the parties wishes to extend to the other is a sufficient consider: ation. But when an engagement has no cause, or consideration, or, what is the same thing, where the cause for which it is contracted is false, the engagement is null, and the contract based on it is also null and cannot be enforced by an action. . The civilians use the term cause in relation to obligations, in the same sense as the word consideration is used in the jurisprudence of Eng: land and the Inited States. It means motive, the inducement of the agreement.”
* Summary of the law of Contracts sections 60 & 61.
Again, would $10 be a sufficient consideration for such a promise where there is an entire lack of motive? Probably not—again bearing in mind that cases where there is an entire absence of motive are rare. On the other hand $100 probably would. The Court must simply view the legal consideration in connection with motive, and if the motive is there the smallest consideration is evidence of intention to act on the motive.
Assuming then a motive to exist what is the most satisfactory evidence of intention to enter into a binding agreement. The formal question and answer of the Roman law is good but the convincing evidence of intention is apt to wear away as time goes on into an empty formality, as has the seal at common law. The doctrine of consideration on the other hand, would appear to be the most satisfactory and convincing evidence of intention that legal experience has produced. And this for no other reason that when a man deliberately sits down and writes out a promise to pay a sum of money to another, and is then given something of value by the obligee for this promise, that formality of give and take indicates better than any other conceivable process an intention to become legally obligated. The obligor has received something of value from the other, something to which he had no right. In accepting it he must have intended something in return. He meant to incur a legal obligation. Intention is evident.
Now since it is the receipt by the obligor of something of value that convinces the Court (or any one else) of his unqualified intention to become bound to pay the larger amount; and since it is the tendency of the law to permit this consideration to waste away, might it not be advisable to have recourse to legislation for the purpose of checking this tendency, and of preserving intact the doctrine of consideration?
Somehow or other it is hard to get away from the reasoning that if a person undertakes to enter into a legal obliga. tion he ought to receive something for his promise, even though he may not, at the time want anything. What he doesn’t want then, any more than what he wants when sued on his promise, should not affect the case. Accordingly if B in the first illustration promises to pay X the thousand dollars due from A, that promise is not enforceable unless X gives some consideration for it. A most substantial and worthy motive exists, but the promise will not be recognized in a Court of law for the reason that it is not clothed with a sufficiently serious aspect. The law says to the promissor: “You probably did not mean what you said or did not comprehend what you were doing.” If X on the other hand had given B $1 that would have been sufficient. If he had given fifty cents that would have been sufficient too; and twenty-five cents; and perhaps ten cents; one cent, or even a brass check. But in each of these cases the evidence of intention is becoming less and less until it finally disappears in the brass check. It is still a legal consideration, but it is most unsatisfactory.
Now as the long history of Roman and English law has shewn that it is the convincing evidence of intention to be bound that is at the foot of the law of contracts; and as our common law doctrine of consideration has manifestly proved itself to be the most trustworthy evidence of inten. tion would it not be proper for a very short statute to be enacted specifying the minimum amount that must be given at the time for a promise to pay a larger sum in the future? This would be placing a minimum on the doctrine of consideration, and the small sum received by the obligor would give his agreement legal force; and in the future transactions like that of A, B and X supra would be on a substantial basis.
To summarize: Intent to incur an obligation, taken in connection with motive constitutes the mainspring of a contract. All else is subordinate to this, and dependent upon it. The doctrine of consideration, properly considered, is simply a form of manifesting the intent. It is properly allied to motive, for without the presence of any motive, a promise to pay a very large sum in consideration of a trivial sum would savour of fraud. Therefore in practice, such a form of entering into a binding promise is a salutary one; but if in such a case there should be an entire absence of motive, it is obvious that the agreement savours of fraud, and the transactions should be attacked on this ground, and not for the mere inadequacy of the consideration. The consideration, no matter how small, is a mere token evidencing intention to become bound.
R. H. GW YNNE. New York City.