учебный год 2023 / A secret paradox of common law

given or done" must be a legal detriment to the giver or doer. He wrote, for instance,

a person does not in legal contemplation, incur any detriment by doing a thing which he was previously [legally] bound to do, but he does incur a detrimentby givinganother person the right to compel him to do it, or the right to recoverdamagesagainsthim for not doing it. One [legal] obligation is a less burdenthan two (i.e. one to each of two persons), though each has to do the samething.2

"To Professor Williston," wrote Henry W. Ballantine, "belongs

the credit of having pointed out the question-begging fallacy in Langdell's theory."3 Indeed, in 1894 Samuel Williston, Harvard's great contracts lawyer, noticed about bilateral contract considera-

tion that "[u]nless a promise imposes [a legal] obligation no promise whatever can be considered a detriment. It is therefore

assuming the point at issue to say a promise is a detriment because

it is binding."4

Fifteen years before Williston's discovery, Sir William Anson had noticed the same difficulty in SirFrederickPollock's Contracts published in 1876.5 One can find observations in O. W. Holmes's The Common Law, of 1881, which contain or suggest the same circularity. He wrote, imagining two people wagering over a past fact: "It is ... a detriment to undertake to be ready to pay if the event turns out not to have been as expected."6

both creates and results from the contract, there is circularity of reasoning. Because the problem can be extended to all agreements,

2Langdell, Section 84, p. 105. Note that unilateraland bilateralcontracts, for Langdell,are treated differently; only the bilateralone with the external personwill havevalidconsideration.

3Henry Winthrop Ballantine, 'Mutualityand Consideration,'HarvardL.R.

28(1914): 123.

4SamuelWilliston,'SuccessivePromisesof the SamePerformance,'Harvard

L.R. 8 (1894): 35.

5See WilliamAnson, Principlesof the English Law of Contract (Oxford: ClarendonPress,1878), p. 80.

6The CommonLaw (1881), pp. 304-5.

Pollock came to speak of a secret paradox in the common law.7 Langdell's claim, and the three-person, two-contract frame in which it was set ("one to each of two persons"), became the focus of a remarkable controversy in the pages of the Harvard Law

Review.

either to derive from the resultant contract (in which case there is

describedit as "one of the secret paradoxesof the CommonLaw."Pollock

was led to addin the eighthedition of hisPrinciplesof Contracts,p. 191, "In fact there is no conclusivereasonother than convenienceof so holding, for the rule that promise and counter promisewill make one anotherbinding; for neither of them, before it is known to be bindingin law, is in itself any benefit to the promiseeor burdento the promisor."

8 The discussionwas initiated by Willistonin 1894 and effectively endedin the journalwith anotherarticlein 1914 by Williston.Corbin,in my opinion, hadthe lastword in 1918 in the YaleLawJournal.The whole debateengaged the best legal minds of the time. Holmes,Pollock, and Anson are enduring figures;Langdell,Ames, Ashley, and Ballantinewere or would be prominent Deans; Willistonand Corbinwere the two greatestcontractslawyersNorth Americahasproduced.

9 See Hume's Essays Moral and Political (1748).

idea of changingone's independentnormativepositionas partof the act of "giving sufficient consideration"to bring a legal contract into existence. One of the subplots of this story is the reluctanceof lawyersto recognizethis dimensionof common-law contractformation.The moralof the tale is that classicalcontract

formation, especially of the bilateral kind (i.e., in which only promises are exchanged), cannot explain considerationmerely from within the force of the contractitself and must - however

little appreciated- depend upon independentnotions of obliga-

Early in the Harvarddebate one writer raised the question of considerationas "benefitto the promisor"and set it in the same

how legal detrimentis created. Assume that B and C have an existingbilateralcontractandB hasnot yet performedA,. a third party, has a strong interest in seeing B perform. PerhapsB is hesitatingand may breach.A approacheshim andoffersa second contract for the same performancealreadyowed to C. Edmund Bennittasked:

What supports a promise by A to pay B for doing exactly what B was already bound to do by a prior contract with C? Whatnew consideration,loss, or detriment to B exists in such cases?Is not the promisebindingon A solely from the supposedgain, advantage,or satisfaction ensuing to him from performanceof the promise,and without any increasedamage,loss or cost to B than havealreadybeen paidfor by C?10

10 Edmund H. Bennitt, 'Is Mere Gain to a Promisora Good Consideration

for his Promise?'HarvardL.R. 10 (1896): 261. Bennitt could support his view well by citing Englishcases, not U.S., notably Shadwellv. Shadwell (1860), 9 C.B.N.S.159 and Scotsonv. Pegg(1861), 6 H. & N. 295.

same promise once given originally in the formation of a contract, if repeated to another party before the designated action is per- formed, be new consideration in the formation of a second or oblique contract with an external party?

Turning to B's action respecting an oblique unilateral contract, there is one self-identical action susceptible to several operative descriptions, e.g., acceptance of a unilateral contract offer from A, formation of a unilateral contract, execution or.discharge by performance of two contracts (one unilateral with A and the other

with C probably bilateral) or giving consideration to A in the uni- lateral contract.12 Being a conceptually plural act, a description must be chosen which counts for the question at stake. When there is an oblique unilateral contract, B's pivotal action discharges by performance his original contract with C and, in the same stroke, aims to form a contract with the external party A. So this is the precise question: Can the same action designatedandgiven in execution of an original contract be consideration in the forma- tion of an oblique contract with an external party?13

Recast in terms of benefit and detriment, one asks, does the pivotal party suffer some detriment for the sake of contract formation with an external party in executing, or in promising to execute, an originally designated duty? One may ask of the exter-

contract to marry.) I have stated the precise questions in terms of the action itself; restatement would be required when the external party requests the performance of the original contract and would not otherwise be interested in the action itself. An example would be where someone wants another to "keep his word" and bargains for that as such.

nal party whether it should count that he receives some benefit

from the execution, or from the promise of execution, by the pivotal party of a designated duty. If one denies validity to all oblique unilateral contracts, as Langdell did, then one must also disallow valuable benefit to the promisor. If one denies validity to all oblique bilateral contracts, then one must find no added detriment in repeating a promise to a new party and count no benefit to a new party in receiving it. This position has been taken, as shall be seen.

3. TWO POSSIBLE SOLUTIONS

The Promise Itself

James BarrAmes, Langdell's.successoras Harvard'sDean, suggested that "the consideration in bilateral contracts is the promise and

concede that the considerationfor every promise must be some act or forbearancegiven in exchange for the promise.The act of eachpromiseein the case of mutual promisesis obviously the giving of his own promiseanimo contrahendiin exchangefor the similarpromise of the other. ... This, then, mustbe the considerationfor each promise..... s

About the particular problem of oblique contracts, Ames's answer was as generous as his overall theory was seemingly simple. All such contracts have consideration in the detriment experienced by

the party who performs, or promises to perform, the pre-existing duty.16 If there is consideration, the only bar to contract would be some matter of public policy. And there is no public policy

14James BarrAmes, 'Two Theories of ConsiderationII,' HarvardL.R. 13 (1899): p. 34.

15Ibid.,pp. 31-32.

16Ames's conclusion was against the tide in America at the time. "It must be conceded," he wrote, "that in this country a majority of the decisions and dicta are opposed to the [English] doctrine...", 'Two Theoriesof ConsiderationI,' HarvardL.R. 12 (1899): 520.

objection per se to oblique contracts. Although there will probably be benefit to the promisor - something judges often mention, especially in unilateral contract contexts - it is never relevant, for the necessary and sufficient test of consideration is detriment to the promisee from the making of a promise, or from the performance of an action.

Ames's theory of bilateral contract consideration and so his

solution to the paradox, it is sad to say, was not well understood. Mr. Justice Holmes, for example, in a letter to Pollock, said that Ames's notion of consideration as "the act of speaking(utterance)" was "absurd."17 Ballantine was to declare, repeating what several others had said before: "But it seems fanciful to suggest that mere words, movements of the lips, vibrations of the vocal chords, the

act of signing one's name, are the consideration requested."18

Lawyers at this stage were in some difficulty, especially with respect to the bilateral contract. The promise one gives in accept- ing an offer unfortunately cannot be the giving of something that

is a legal detriment; it was brought home in most quarters that that kind of detriment only comes as a result of a contract's

successful formation. It cannot be consideration. To avoid circu-

larity of reasoning must the parties then be thought to trade onerous noises? The very idea of a bilateral binding exchange certainly had something paradoxical to it. Of course Ames, for his part, did not mean that the utterance qua physical movement or oral effort was the detriment given in making a bilateralagreement. He had said that one gives one's promise and so there is "a change

of position on his part."19 But missing is a development of that idea by Ames, so it is perhaps not strange that others took him

wrongly.

17 The Pollock-Holmes Letters, Volume I, ed. Mark DeWolfe Howe (Cam-

bridge, 1942), p. 177.

18 Henry Winthrop Ballantine, 'Is the Doctrine of Consideration Senseless

and Illogical?' Michigan L.R. 11 (1913): 427. 19 Ames, 'Two Theories I,' p. 515.

did look closely at the notion of a promise. Ashley declared,

we should look at each supposed promise with a view to its legal requirements, and we then conclude that each is a promise if it meets our profes-

sionalconception.... Thereis no beggingthe question in sucha process.20

The layman's use, the one which Ames apparently had meant, seems nothing but "mere words of promise to which no legal con-

20ClarenceD. Ashley, 'Whatis a Promisein Law?'HarvardL.R. 16 (1903):

21Ibid., p. 322.

22Ibid., p. 321. As a claim about what is true by definition within the

standard discourse of the guild, counterexamples suggest themselves.The expression "gratuitouspromise,"a commonplacein legal literature,must be

terms. Languagelike "a promise that is not binding is of no value" (from

Williston)is either tautologous or nonprofessional.Morecasually,one lawyer says to another, "Thatpromiseyour client made, it will neverbe enforced; the plaintiffwill fail." Suchtalk does not fit Ashley's strictures.

23 Ashley, 'Whatis a Promisein Law?' p. 321. In so far as most laws are addressed to nonprofessionals,not just lawyers, purely technical conceptions cannot be a desideratumof all law. Thereis, one mustsuspect, a certain despair in the appeal to acumen. In another essay, a decade later, Ashley concluded that "consideration"cannotbe defined. But he did not add that it

is therefore the subject of professionalintuition. Instead, he said it should be legislatedout of the law. See his 'The Doctrine of Consideration,'Harvard

L.R. 26 (1913): 429-36.