of liability on a promise for the value of the unrequested benefits received. Yet, there is a consensual side to liability in that recovery is limited to the extent of the promise if the value of the benefit exceeds it.

CONCLUSION: MORAL OBLIGATION PRINCIPLE

Had Mansfield not used such a broad brush in stating his moral obligation ideas, conservative English and American judges and writers would possibly have been more receptive to his reforms. In limiting Mansfield’s controversial notions to the scope of Holt’s waiver and ratification precedents, these guardians of common law doctrine disingenuously denied other long standing caselaw support for moral obligation by asserting that the bargain standard of Hunt v. Bate (1568) represented the sole test for determining when a promise was binding.

It was left to reform-minded American jurisdictions to fashion boundaries for actionable restitutionary promises falling under Mansfield’s openended equitable theory. The initial American decisions rebutting the reactionary response of the Reporters’ Note in Wennall v. Adney (1802) to Mansfield employed the same doctrinal means of manipulating the doctrine of consideration as the Reporters had done, in order to obtain the opposite result of rationalizing enforcement of promises grounded upon the felt moral obligation to pay for non-gratuitous benefits received. Once influential minority jurisdictions like New York and Pennsylvania had consolidated these gains, they glided to the equitable declaration that such a promise could be supported by a ‘‘moral consideration.’’ A few twentieth century jurisdictions would later abandon the sham of bargain consideration being present and openly declare moral obligation to be an independent ground for relief on restitutionary promises. The moral obligation principle provided the grounds for creation of a new cause of action independent of the need for consideration. English precedent was being adjusted consistent with republican natural law notions of fairness and morality.

The onset of these American reforms in the nineteenth century was facilitated and encouraged by changes in procedural law and by a borrowing from civilian ideas promoted by some commentators. The procedural law reforms commenced at mid-century with the abolition of the ancient forms of action and the fusion of courts of law and equity. The end of the common contract counts empowered courts to shift their focus from the intricacies of the formulary system to the terms of freely-made agreements. A fused court of law and equity now had the necessary flexibility and discretion to fashion a category of black letter exceptions to the past consideration rule, permitting the enforcement of promises made in recognition of moral obligations generated by the receipt of non– officiously bestowed benefits.

In the wake of the abolition of the forms of action, reform-minded jurisdictions utilized the civilian consensual theory to replace the structure lost with the end of the forms. The consensual theory provided a theoretical construct to effectuate their goal of enforcing voluntary promises on moral obligations; this European idea buttressed American courts’ perspective that freely consented-to promises made for good reasons, besides bargained-for promises, were deemed worthy of enforcement. When the reciprocal nature of the doctrine of consideration did not mesh with consensual theory support for certain promises motivated by moral obligations, the inclination of some nascent courts of law and equity was to craft equitable exceptions to the past consideration rule.

The elements of benefit, moral obligation and a subsequent promise became the parameters for enforcement of a consensual restitutionary promise by a growing number of modern courts of law and equity, despite the absence of bargain consideration. This moral obligation principle provided a balance between traditional concerns for reciprocity and predictability on the one side and notions of consent and the unfairness of unjust enrichment on the other. A majority of nineteenth century American courts opposed this exercise of equitable prerogative; nevertheless, the federal system afforded experimentation by pioneering state jurisdictions in developing extensions of the limited notion of moral obligation found in Holt’s precedents. Other jurisdictions would follow in the twentieth century.

By incorporating the moral obligation principle in Restatement Second of Contracts Section 86, the restaters encouraged restitutionary relief in a more flexible manner than most courts had previously done, much as earlier restaters had done in encouraging reliance relief in the original Section 90. (Today, virtually all promises enforceable without consideration at common law are binding on account of either the reliance or the restitutionary interest.) The recognition of a defendant’s binding restitutionary promise in Section 86 was a natural complement to actionable reliance relief under Section 90; together they provide exceptional equitable relief outside the consideration construct both on promises generated by a felt moral obligation to pay for a non-officious benefit previously received and on promises generating foreseeable reliance.

The justification for modern judicial enforcement of restitutionary promises resides in the joining of two interests deemed meritorious of relief, namely, free consent and receipt of a benefit hovering on the margins of restitution. Restitution is denied when there is a fear that the benefit was thrust on the recipient, but that fear of imposition is assuaged by the subsequent promise. A consensual promise is not binding unless the promise is made for a good reason that the community perceives to be worthy of support. Sporadically, over the centuries, a subsequent promise on a felt moral obligation to pay for a non-officious, non-gratuitous

enrichment received has been deemed worthy of support if an injustice would otherwise occur. When there exists a coalescence of the receipt of an unrequested enrichment with a subsequent promise to pay, modern courts of law and equity have been inclined to find community support for enforcement of such a voluntary promise. Courts and restaters of the law have drawn on scattered precedents in the centuries of caselaw to articulate a rationale for an organized theory of recovery on restitution promises; reforms instituted, and others yet to be realized, must still be rationalized within the bounds of the common law construct.

In corralling Mansfield’s ideas into a structured moral obligation principle, American courts noted the common theme in the moral obligation precedents since the sixteenth century of a promise made on account of a felt moral obligation to pay for the prior receipt of a benefit. These factors became the elements of the American moral obligation principle. The existence of a voluntary promise permitted contract enforcement of unjust enrichment that fell short of qualifying as a ground for restitution relief; now, in order to prevent injustice, such a promise would not fall through the cracks between the rules related to a contract supported by bargain consideration and to restitution. This gap-filling principle has not proven to be a threat to unseating the general consideration test for contract liability, as Denman had feared, since in performing its interstitial role to avert injustice the moral obligation principle acts as an exception to the principal contract formation ground of bargain and thus does not constitute a general competing basis of contract actionability. The fair results and reasonably predictable outcomes achievable by application of this restitutionary promise principle should eventually prove attractive to common law jurisdictions that have yet to significantly reform their traditional past consideration rule.