Chapter 9

Case Precedent for

Mansfield’s Notion of

Liability without Prior

Legal Obligation

As discussed in the preceding chapter, the 1802 Reporters’ Note to Wennall v. Adney stated:

A promise can only revive a precedent good consideration, which might have been enforced at law . . . had it not been suspended by some positive rule of law, but can give no original right of action if the obligation on which it is founded never could have been enforced at law.1

Lord Denman, C. J. invoked this passage in Eastwood v. Kenyon (1840) to rebut Mansfield’s notion of moral obligation and confidently declared that it was ‘‘justified by the old common law of England.’’2 It was one thing for Denman to decree that the Reporters’ interpretation would be the law thereafter, but it was simply not true that recovery on a moral obligation at common law had been restricted to promises on obligations once enforceable at law but which were now barred by some stubborn rule of law. As mentioned earlier, decisions can be found as early as the sixteenth century, within several decades after the genesis of the doctrine of consideration, which enforced promises on prior moral, but not legally enforceable, obligations. No precedent prior to Denman had declared that the moral obligation principle applied only to formerly enforceable legal obligations.

ENGLISH PRECEDENTS NOT REQUIRING PRIOR LEGAL OBLIGATION

The crux of the Reporters’ argument in their Note to Wennall v. Adney was that the moral obligation principle had not been applied at common

law to prior obligations which had not formerly been enforceable at law. This interpretation justified supporting the waiver precedents, but it foreclosed Mansfield’s broader civilian moral obligation ideas. The key factor that the Reporters emphasized must be present in order for the past obligation to have been enforceable at law was the presence of a request of the defendant previous to the plaintiff providing the benefit. The reciprocity of the bargain was fulfilled by the defendant’s request inducing the plaintiff to provide the benefit. Without the previous request, the plaintiff was a mere volunteer since the defendant had not bargained for the plaintiff’s performance. This idea, which was bundled up in the doctrine of consideration, emanated from the ruling in Hunt v. Bate (1568),3 the case of the plaintiff paying to bail the defendant’s servant out of jail while the defendant was away. The court held for the defendant, despite his subsequent promise, because he ‘‘never requested the plaintiff to do it, on behalf of his servant, but he did it of his own head.’’4 The Reporters in Wennall claimed that no precedent truly fell outside that rule; however, a closer look at the precedents during the two centuries after Hunt v. Bate indicates that not all decisions fell neatly within the previous request formula.

The first case found to deviate from the Hunt v. Bate bargain paradigm of a previous request was Style v. Smith (1587).5 A father promised to pay a physician friend who had cured his ill son in the father’s absence. Because the father made a promise, assumpsit could be brought, and the court held in favor of the physician despite the fact that the father could not have requested the treatment since he was absent. A father’s sense of moral obligation to pay for necessaries provided to his child arose again in a 1682 action brought on a father’s promise to pay the plaintiff for comestibles previously given to his bastard child. Once more, no previous request was alleged. Still, Pemberton, C. J. ruled: ‘‘An indebitatus assumpsit will lie for meat and drink for a bastard child.’’6 Mansfield came to the same conclusion in Scott v. Nelson (1763)7 by holding a father bound by his promise to pay for the previous maintenance of a bastard child. Without the fathers’ promises in the last two cases, they would not have been liable for their bastards’ necessaries; even if a statutory action was brought against them, they would only be liable prospectively. A fourth example of a father being liable on a promise to pay for a prior benefit provided a child is Best and Jolly’s Case (1660).8 The father was held liable on his own debt and his son’s debt, both due the same creditor, because he promised to pay them both if the plaintiff would forbear from suing. The court said, ‘‘he was not liable for his son’s debt,’’ but having induced forbearance, he was liable.9

Another batch of precedents enforcing a defendant’s subsequent promise, without his request previous to the plaintiff providing a benefit, involved cases of plaintiffs financing the burial of a defendant’s spouse or child in the absence of the defendant. In Church v. Church (1656),10 the

court ‘‘ruled that assumpsit would lie for the expenses of defendant’s child, buried by plaintiff without request.’’ And in Jenkins v. Tucker (1788),11 a father paid for a relatively lavish burial, according to the wealth and station of the absent husband, who had left his wife in order to run a plantation in Jamaica. Loughborough, J. said: ‘‘[t]here was a sufficient consideration . . . though there was neither request nor assent on the part of the defendant, for the plaintiff acted in discharge of a duty which the defendant was under a strict legal necessity of himself performing.’’12

Two final examples of precedents recognizing liability on promises to pay for a moral obligation, which were unenforceable at law, come from Mansfield’s tenure as Chief Justice. Mansfield held executors liable on promises to pay out legacies to heirs even though they had no obligation to pay legacies at law.13 Executors did have such a duty in equity and canon law, however, and Mansfield adapted these principles to the common law. Also Mansfield held a widow liable on her promise recognizing a moral obligation to satisfy a debt which was void because it was incurred while she was disabled as a married woman.14

In the Note to Wennall, the Reporters denied that the above cited precedents enforced promises on past moral obligations; they justified the rulings for the plaintiffs by disingenuously arguing that, despite the absence of evidence in the reports, the defendants must have made requests prior to the plaintiffs’ actions. Their strained justification for Style v. Smith was:

From the expression ‘‘in the absence of a father,’’ used in that case, it may be inferred that the son lived with the father, and that the medicine was administered to the son in the house of the father, while the latter was absent, from whence it results that the physician’s debt, though not founded on any immediate benefit to the father, or on his request, was most probably founded on his credit; which credit, it fairly inferred from circumstances by the physician, might operate to charge the father in the same way as his request would operate, the physician having sustained a loss in consequence of that credit.15

The Reporters disposed of the cases of fathers promising to pay for victuals provided to bastard children by saying: ‘‘Although the latter case does not expressly say that there was a previous request by the Defendant, yet that seems to have been the fact.’’16 Their retort to the cases of promises to pay for funeral expenses of a child or spouse paid by the plaintiff was: ‘‘[t]hough no request was laid in the declaration. Of which case it may be observed that possibly after verdict the Court presumed a request proved.’’17

By the Wennall Reporters inferring that plaintiffs had made previous requests in the above precedents, they were rationalizing them under the rule in Hunt v. Bate, thereby denying that common law precedent had

ever bound defendants to subsequent promises supported only by felt moral obligations to pay for the prior receipt of unrequested benefits. The monist urge of common lawyers to insist upon a single bargain test of liability, applicable to all promises,18 made it unfathomable that there could be permitted even this narrow exceptional sub-category of the doctrine of consideration for promises based on the moral obligation of paying for necessary, and thus non-officious, maintenance provided to dependents.19 Since these precedents did not accord with their view of consideration, they explained them away. They disingenuously overlooked the reality that these were types of obligations that a promisor would have requested or paid for himself originally, had he been available to do so, and he ought to pay, previous request or not.

Thus, as early American courts began to build their own common law on the foundation of English law inherited at the Revolution, English precedents existed to support the application of the moral obligation principle to prior obligations that had not once been enforceable at law. Denman’s atavistic 1840 ruling in Eastwood v. Kenyon was of course not a precedent that American courts were bound by; however, a majority of American judges and writers were probably sympathetic to Denman’s restrictive view. Nevertheless, a persistent minority of judges and writers were not persuaded. For those who supported the growth of the moral obligation principle in the United States past the waiver and ratification precedents, the first step was to accomplish what the early nineteenth century English decisions had done, under Ellenborough’s leadership, in enforcing subsequent promises on certain prior void contracts. Once that position was consolidated, an emerging nineteenth century minority, less deferential to English decisions, would expand the moral obligation principle beyond what English law was ever able to achieve.

VOID CONTRACTS COVERED

Two of the main applications of the moral obligation principle during the period of liberalization in early nineteenth century England were for enforcement of promises subsequent to contracts deemed void on account of usury and the disablement of married women. In Eastwood v. Kenyon, Denman effectively denied the enforceability of a former married woman’s ratification of a contract made under coverture, as had been enforced in Lee v. Muggeridge (1813).20 Although Denman thought the upholding of a second promise curing a usurious one in Barnes v. Hedley (1809)21 was ‘‘consistent’’ with the Wennall Note,22 the ferocity of his general attack against deviations from the old waiver and ratification precedents left in doubt enforcement of formerly usurious contracts in England until Flight v. Reed (1863) approved a somewhat similar promise curing usury.23 Pollock, C. B. articulated in 1863 what Denman probably meant, in saying Barnes v. Hedley was consistent with the precedents, when Pollock

said the case fit under the exceptions for promises waiving positive statutes which barred the plaintiff from recovering for what the defendant had received.24 American courts now had to decide for themselves whether they found these post-Independence English decisions persuasive. Langdell thought Denman should have overruled Barnes v. Hedley before Lee v. Muggeridge because at least in Lee there was ‘‘a clear moral obligation’’ which was more than what could be said about a promise in the ‘‘face of the statute of usury.’’25

Later in the same year that Barnes v. Hedley was decided in England, a Connecticut court upheld a second promissory note, which replaced the usurious original, in Kilbourn v. Bradley (1809).26 Defense counsel argued that a claim originating in an illegal transaction is merely a substitute and just as void.27 The court pointed out that equity would order repayment of the sum owed at the lawful interest and said: ‘‘The moral obligation of the borrower to repay the principal sum actually loaned, with the lawful interest is unimpaired. If the lender will expunge the usury, and the borrower voluntarily assents to repay the sum loaned with lawful interest, it is an act of justice forbidden by no principle of public policy, and which constitutes a good consideration for a new contract.’’28 Twelve years later in Early v. Mahon (1821), Chief Justice Spencer of the New York court stated: ‘‘Barnes v. Headley [sic] . . . in my opinion places validity of the promise and the sufficiency of the consideration, beyond a doubt.’’29 Although the usurious contract was ‘‘void,’’ he said: ‘‘It has been repeatedly decided in this court that an equitable or moral duty is a sufficient consideration for an actual promise to pay. In Hawkes v. Saunders . . .’’,30 the court emphasized the equitable duty to pay for the benefit received and stated: ‘‘[t]he defendant having had the plaintiff’s money, without any consideration . . . the promise subsequently to repay this money, was founded on a moral and equitable duty.’’31

Langdell went against the tide in opposing subsequent promises on illegal usurious contracts since enforcement was supported by a majority of American jurisdictions by at least the early twentieth century.32 The common law followed equity’s lead by enforcing the subsequent promise for the non-usurious amount since the debtor had received the benefit of the loan.33 Subsequent promises on other illegal contracts were treated the same,34 unless sensitive policy concerns existed.35

Langdell was likewise out-of-step with the position of a majority of American jurisdictions in thinking that perhaps a subsequent ratification of a married woman’s promise should be binding.36 Subsequent promises of divorcees and widows recognizing their moral obligation to honor agreements made during marriage were first enforced by Mansfield in 1774; Mansfield said she had received the benefit of the original agreement and ‘‘in conscience’’ she should abide by her ratification made after she was out from under coverture.37 When the reaffirmation of Mansfield’s view in Lee v. Muggeridge (1813) was quashed in Eastwood v. Kenyon, it was prob-

ably more on account of the broad judicial support of the moral obligation principle articulated in Lee v. Muggeridge than for the merits of the plaintiff’s claim.

In the United States, statements supportive of enforcing a former married woman’s ratification of her agreement made during coverture can be found by the 1820s.38 In the oft-cited Pennsylvania case Hemphill v. McClimans (1855), a wealthy married woman induced the plaintiff to provide services to her son by promising she would pay; she later ratified her original promise after she divorced. The court baldly stated: ‘‘But the rule is a very familiar one, that an existing moral duty, not enforceable by law, is a sufficient consideration for an express promise to perform that duty.’’39 The court acknowledged a subtle legal difference between a promise of a married woman and a promise of an infant, but, in conscience, the court saw no difference in the morality of their conduct. In enforcing the subsequent promise even in the absence of a direct benefit to the woman, the court emphasized that the creditor relied upon her sense of justice in that she had the money and she wouldn’t rely on a disability defense. Dictum in Wilson v. Burr (1841)40 gave a doctrinal justification for enforcement of a subsequent promise on a void promise of a married woman. The New York court suggested that the overall transaction complied with the bargain paradigm because her unenforceable promise made while married, though not enforceable at law, constituted the equivalent of a previous request inducing the plaintiff to provide the benefit. Denman admitted as much, in an aside to his lambasting of Lee v. Muggeridge, when he said: ‘‘It should however be observed that in that case there was an actual request of the defendant during coverture, though not one binding in law.’’41

Kent v. Rand (1886)42 is a representative case for the majority American position that a former married woman’s subsequent promise lacks consideration. The court cited the dictum in well known precedents opposing enforcement,43 while distinguishing the traditional exceptions to the past consideration rule. The New Hampshire Supreme Court distinguished bankruptcy and statute of limitations since they ‘‘only suspend the remedy’’ and distinguished voidable infants’ contracts since married women’s contracts were ‘‘[v]oid, no debt ever existed, and hence they furnish no consideration for a subsequent promise made during widowhood.’’44 Thus, unlike the majority American position enforcing subsequent promises to cure usurious contracts, a majority did not eventually adopt the above-discussed minority position, held by New York and Pennsylvania, enforcing a former married woman’s ratification.45 A majority of jurisdictions did, however, enforce a former married woman’s subsequent promise if the promise during her marriage bound her separate estate in equity;46 through this analogy to equitable enforcement, the presumption of voidness was overcome.

Why did a majority of American jurisdictions never come over to enforcing a former married woman’s subsequent promise generally? The prime reason seems to be that American courts have taken the doctrinal difference between void and voidable agreements seriously.47 There were of course policy reasons behind this void status. In contrasting the treatment of former married women with debtors under usurious contracts and ratifying young adults, widows and divorcees had their own special problems. Earlier in this century, a woman, finding herself out on her own, might not have been of an active age or employable status to realistically shoulder a perceived past moral obligation. Policy concerns exhibited in reservations in nineteenth century married women’s acts also suggest reasons. Although these statutes conferred contract and property rights to married women, married women were exempted from contract liability in certain instances for fear they may have agreed involuntarily; for example, some statutes did not hold married women for agreements to act as a surety, an accommodation party, an assumer of her husband’s debts or even a contract not for her benefit.48

In enforcing some subsequent promises on prior void obligations, American law had more or less regained the ground lost in English law as a result of the decision in Eastwood v. Kenyon. In order to further expand the range of binding promises on prior obligations, reform-minded American judges had to surmount the doctrinal impediment of reciprocity and its required presence of a previous request. In finding ways to rationalize away doctrinal demands, American enforcement of promises based on moral obligations would surpass the liberalizing English decisions of the early nineteenth century.

Chapter 10

American Promissory

Restitution Supported

by Consideration

The concluding two chapters analyze the evolution of the modern American moral obligation principle. All exceptions to the traditional past consideration rule recognized today include the common feature of the defendant-promisor’s felt moral obligation on account of the prior receipt of a material benefit. The first three stages of recognition of exceptions were rationalized within the confines of the bargain construct: one, that the subsequent promise constituted what Holt characterized as either a waiver of an impediment to enforcement or a ratification of a prior imperfect transaction; two, that the circumstances surrounding the receipt of the benefit raised the promisor’s implied previous request; and three, that the moral obligation to pay for the prior benefit received constituted consideration to support the subsequent promise. Under a fourth exception, twentieth century American courts abandoned the bargain consideration construct entirely in declaring that a moral obligation to pay for a prior benefit supported a subsequent promise, in and of itself, without the need to rationalize the existence of consideration. The first of the above exceptions, dealing with waiver and ratification, was discussed previously. The remainder of this study analyzes the development of the last three of the above exceptions, which comprise the field of promissory restitution, wherein courts focused directly on the legal meaning and efficacy of a promise grounded on a prior receipt of a material benefit. This penultimate chapter concerns the second and third exceptions rationalized under the doctrine of consideration, and the final chapter focuses on the fourth exception of promissory liability in the absence of consideration.