378 the enforceabilit y of promises

Conversely, the presence of a certain fact may compel a court to reach a result which seems ill-advised. For a long time, English courts said there was no consideration for one party’s promise to modify his contractual duties when the other party did not modify his own. As we have seen, they finally recognized exceptions when the promisor received a ‘practical benefit’ or the promisee relied. Surely, before these exceptions were created, English courts must have refused many times to enforce promises which they thought should be enforced. Today, promises are unenforceable when only the promisor has committed himself. Such promises can sometimes be unfair, as we saw in Cases 8(b) and 13(c) when the promisee could buy as much steel as he wished at a fixed price or held a long-term option on the promisor’s property. If they are sufficiently unfair, other legal systems will not enforce them either. The consequence of the doctrine of consideration, however, is that other promises are not enforced, such as those in Cases 8(a), 8(c), and 13(a), because only the promisor is committed even though they do not seem unfair, and other legal systems enforce them routinely. It may be that English courts see no reason for refusing to enforce them except that the absence of mutual commitment is a fact that requires them to apply the doctrine of consideration.

In any event, as we have seen, common law courts reach many of the same results as those in civil law systems, in part, because of the exceptions that they have recognized. If one wishes, one can speak of the carving out of these exceptions as ‘convergence’. But, in this area of law, the doctrinal structure has not converged.

C. The search for solutions

We have examined the results that different legal systems reach and seen that they can most often be explained as responses to common underlying problems. That does not mean that the rules were adopted with these problems distinctly in mind. It is often easier to see that a result makes sense than to explain why it does, or even what problem it addresses. Indeed, one of the advantages of the comparative study of law is that by examining the approaches of different legal systems, we may gain a better understanding of the underlying problems.

Having gained a better understanding, we should be in a better position to see how a problem can be solved. We should at least be able to frame a solution that addresses the problem straightforwardly. Many of the solutions we have examined, in contrast, address problems obliquely, so much so that one cannot see right away what problem is being addressed. Often,