учебный год 2023 / A secret paradox of common law

results from this: when one person asks another for a (contractual) promise, one asks for the other's undertaking of a legal obligation.24 This means that consideration is given only if the words of promise are technically conceived and so intended by the speaker; one does not see oneself as uttering merely ordinary words of

promise.

So the choice in the analysis of bilateral contracts between Ames and Langdell or Ashley (who was in essence a Langdellian) at the fin de siecle was a choice between finding consideration in the plain man's change of position by his act of promising (Ames) or finding it in the legal relationship conceived in professional or internal terms.

form, a pre-existing duty. In the case of oblique unilateral contract performance, one only does that which one was already doing

upon the original contract; it is analogous to doing less (presumably, by being not more) than one had agreed to do, which will not support a promise.25 In the case of oblique bilateral promising,

the "proposed promisor has nothing to promise, as he has entirely disposed of his right to refrain from doing the supposed act."26 This idea will be challenged later, notably by the Hohfeldians, and

24See Ashley, 'What is a Promise in Law?' pp. 322-23.

25See Clarence D. Ashley, The Law of Contracts (Boston: Little, Brown, 1911)

pp. 98-102. The argument on the basis of this analogy has not been popular in the history of this dispute. The only recent reference to it (about a bilateral oblique contract) that I have found is in G. H. L. Fridman's The Law of Con-

the discussion of it must be delayed. But Ashley's conclusion,

against Langdell's, is surprising. Why should Ashley not have been prepared to recognize an oblique bilateral contract as setting up a new legal relationship? The answer probably is that he should have. He erred in not seeing the implications of his own theory, in which circularitywas a virtue not a vice.

Ames's supposed conception

derision. Ashley did not wish to employ "detriment" at all. He argued as follows. Because a "promise in law" is always a legal

obligation, it follows logically or internally from a promise's exis- tence that there is also legal "detriment." Ashley believed in effect that this is how Langdell should be understood. But then, he saw, detriment ceases to have an independent life. It is true, Ashley recognized, that the best modern authorities want to retain the usual notion of detriment, but - it should be realized - there need not be any kind of harm or injury to the promisee in the act of contract formation. Whenan alcoholic accepts an offer of $ 1,000 to abstain for six months: "It is true he had given up a right, but that very giving up saved his life.... To call that a 'detriment' is the purest fiction. ... 27

Equally, neither Ames nor Langdell nor Ashley had any use for the traditional aspect of consideration known as "benefit to the

promisor"; Ames and Langdell thought it was unnecessary and in- sufficient to a contract and Ashley threw it out along with (value) detriment.

The striking fact about Ames's analysis is its simplicity and its

underdevelopment of the concept of a change of position. The striking fact about Ashley's theory is its rejection of the detriment- benefit tradition (conceived in terms of values), and its normative

27 Ibid., p. 3.28. There are two minor difficulties in Ashley's example of an alcoholic. The alcoholic did not promise his abstinence, so during the six sober months he did not give up the right to drink. What he gave up was drinking, in the formation of a unilateral contract. The second defect is this. Those who traditionally have used a criterion of value detriment have not insisted upon overall detriment. is a

detriment to an alcoholic.

an oblique bilateralcontractexists,he declared.The attemptmust resultin circularityof reasoning.The appealto "legaldetriment" could,as hasbeen noted, contaminatethe wholetheoryof bilateral agreement.ThusWillistonarguedthat if one looks at courts'decisions one will find that when the sufficiencyof considerationis

fact that there is an obligation to perform."29 In fact, the questionof obliquecontractsandpre-existingduty is basicallyone

of "sufficiency":given what is to be done, or is actuallydone,

does the pivotalpartydo enough?The promiseof a performance, or the executionitself, of a pre-existingduty is not enough,said Williston,for neither is a new detriment.So far as a criterionof

detrimentis concerned,oblique unilateralcontractsfall together with bilateral.

Thus the crucialnext questionis whetherthe promisor'sbenefit is to be allowed a role in the theory of oblique consideration. About the test case Willistonwrote that it is "the only classof cases where it is possible for a promisorto receive a benefit to

which he was not previouslyentitled, movingfrom the promisee, and yet the promiseesuffersno detriment."30Shouldconsidera-

tion be solely what the promiseehasgivenup, or sometimeswhat the promisor has received? Williston knew that courts have

frequentlyspokenof benefitto the promisoras consideration,but that is an historicalvestige,he said, not part of the modernview that considerationis somethinggivenby the promiseealoneas an

exchangeat the requestof the promisor.In brief,in the test case, while detrimentis insufficient,benefit is irrelevant.All oblique

opposed only to the unilateral.Ames - ahead of his time in America- found no good reasonin principleagainstobliquecon-

29SamuelWilliston,'SuccessivePromisesof the SamePerformance,'Harvard L.R. 8 (1894): 36.

30Ibid., p. 33.

tracts at all. Agreeing with Williston (and I should add, Ashley) in this period one finds Sir WilliamAnson.

5. SIR WILLIAM ANSON ON OBLIQUE CONTRACTS

In England Anson was dead set against all oblique contracts and regularly cited American decisions in his own later editions. American courts on the whole were refusing to enforce oblique

contracts. But English courts were doing just the opposite. So there were the precedents of Shadwell v. Shadwell31 and Scotson v. Pegg32 for Anson to face; here oblique contracts were found good despite pre-existing duties. In his first edition, Anson suggested a "possible explanation" of these decisions:

... that an executory contract may always be discharged by agreement

between the parties; that A and M, parties to such an [executory contract], may thus put an end to it at any time by mutual consent; that if X says to

A 'do not exercise this power; insist on the performance by M of his agreement with you, and I will give you so and so,' the carrying out by A of his agreement, or his promise to do so, would be a consideration for a promise by X. A in fact agrees to abandon a right which he might have exercised in concurrence with M, and this ... has always been held to be consideration for a

promise.33

By the sixth edition, Anson was writing, "At least, one may say

that on principle the performance or promise to perform an out- standing contract with a third party is not of itself consideration for a promise. ...,34 That language, a firmer statement than he had previously employed, remained to the fifteenth edition, well after his death. In the sixteenth, in 1923, Anson's editor M. L.

Gwyer introduced the logical circle in its place in spite of Anson's

31(1860), 9 C.B.N.S. 159.

32(1861), 6 H. & N. 295. Anson took this case and the previous one to be oblique bilateral contracts; most writers took them to be unilateral.

33William Anson, Principles of the English Law of Contract (Oxford: Clarendon Press, 1879), p. 81.

34Anson, 6th ed. (Oxford: Clarendon Press, 1891), pp. 89-90.

tradition,and fully reversedhim on oblique contracts.He wrote that obliquebilateralcontractsmayhave"goodconsiderationfora

promise, because as between promisor and promisee a new

[presumably, legal] obligation is in effect undertaken."35 That observation was dropped from the next edition. Yet the full quite firm, thereafter resting till 1959 upon the

(1879) abandonment argument quoted above.

Anson doubted that any general nonfallacious rationale can be provided for oblique contracts, unilateral or bilateral, but he had suggested a special rationale when B, in consideration of the promise from A, gives up his right or power to seek cancellation of an original contract with C. Being party to an original contract, B has, in A. G. Guest's word, a "liberty" which can be forgone. Forgoing it will provide a basis for a protecting contract between B and A that is not otherwise supportable. When formed, it will be bilateral.36

The argument, as Anson knew, was not general.'First, only if the external party (Anson's X) in fact had requested a noncancel- lation agreement (or made a unilateral contract offer the accep-

tance of which was noncancellation) could the pivotal party's promise (or inaction) be consideration for the counter-promiseof X. Second, a main bilateral contract must be distinguished from an

oblique agreement not to seek a cancellation of it. There are two contracts here; the latter I shall call a "protection" contract. I will discuss Anson in terms of that idea next. Not finding a general solution to the problem of circularity and detriment in oblique contracts, Anson himself concluded that on principle they lack consideration - though in special circumstances there is the "pos- sible explanation" mentioned.

35 Anson, 16th ed. (Oxford: Clarendon Press, 1923), p. 119. Italics in

original.

36 A unilateral second contract would be pointless. When one performs the action designated in the original, one necessarily has forgone the power to cancel, and it would be a mistake to say that there is a logically separate protection contract for that result.

that B should drive the Grand Prix (the thing previously contract- ed with C). Thus there may be an oblique contract the subject of which is B's designated performance of the original and there may be a protection contact between the same two parties of the

oblique contract, in which the pivotal party B promises A not to seek a cancellation of the original that B has with C.

It must be at this point that Guest goes wrong. If the problem of pre-existing duty does not touch the protection contract itself, then there is no question begged. The protection contract indeed is made with a "third party" relative to the original contract, but there is no common designated performance in the two. To put it another way, the protection contract would have to have been an oblique contract. But it could be an oblique contract only if the original contract had contained a "seek no abandonment" clause.

It did not, by hypothesis.

Of course the protection contract does presuppose that the original contract is an enforceable burden, but that never was in dispute here; it is from the original agreement that B derives his power to seek a cancellation, something he would lack for bargainingwith A if there were no original contract with C. Does the protection contract presuppose its own validity? Here one merely confronts the generalized paradox. It will only if all bilateral contracts must. But Guest is not claiming that circularity of reasoning in bilateral agreements is inescapable. He holds only that the abandonment argument commits the fallacy. It has been shown that it does not.

Now the question is this: in accepting an offer from A merely to secure a protection promise from B, does B give anything in return that he was not already bound to give? On the hypothesis that the originals have not protected their own agreement, the answer is yes: B does give up a power or liberty not antecedently parted with by contract. There is no duty that the protection contract may seem to repeat. When A approaches B, wishing to

secure the performance of the original contract, A is not usually

seeking "protection" as such. Although B may promise A not to seek a cancellation, should B breach his original obligation, the

210 RichardBronaugh

only legal action would be C's. A's action would lie only if B were to have sought a cancellation by approaching C for that purpose. In fact, B might have sought to cancel (and so be liable) and still perform his originally promised action - even if the offer to cancel had been accepted.

In brief, the protection contract is rarely about a pre-existing duty; it is about a side issue, viz., protection. Anson's "possible explanation" is interesting, for it takes an approach to detriment that is normative rather than in terms of harm and injury. It avoids the logical circle of "legal detriment," but in the end at the cost of relevance. The paradox is not yet resolved.

7. WILLISTON'S FINAL SOLUTION

The essay

appeared in 1914; it was the year of Anson's passing, a major holdout against all oblique contracts gone to the grave. In 1894 Williston had noted the distinction between the act of promising and its content, but he had not been as clear on the distinction,

which now attracted him, between consideration in fact and the

sufficiency of it. Now he felt he could put it together, saying that in bilateral contracts there is consideration in fact if and only if

there is some exchange consisting of acts of ordinary promising, and, further, that there is sufficient consideration when there is no material failing, or defect within the content of the promises. By finding consideration in the ordinarycommunicative act, Williston's solution was so far favorable to Ames. Williston opposed Ashley's

law," for he realized that ordinary speakers request ordinary promises in contract formation and may

not even think of the legal implications. The appeal to promise in fact was intended to run between the Scylla and Charybdis of

absurdity (Ames) and paradox (Langdell) in the general theory of bilateral consideration.

Williston did, however, take exception to Ames's view that all exchanges of factual promises are enforceable contracts unless they are contrary to public policy. Ames's view resulted in the

prima facie validity of all oblique bilateral contracts. Although Williston now agreed, he felt Ames's theoretical backing was too simplistic. Even if oblique contracts do have consideration in fact, and even if no public policy is offended by them, the pre-existing duty does raise a question. That is a question of sufficiency, not merely policy. Williston's mature theory of contract formation involved three questions: is there consideration in fact? is it sufficient? is public policy offended? The notion of consideration in fact, by escaping circularity of reasoning, was a theoretical advance. The question of detriment and benefit and that of suffi- ciency are the same.38 Public policy is a distinct matter. Thus an illegal contract may have, indeed should have, sufficient consideration, yet be void on policy grounds.39 Reasoning the issue through in this way, Williston concluded that bilateral and unilateral

oblique contracts are both good.

Williston's full turnabout is a result of his admission of con-

sideration as "benefit to the promisor," the thing he had once refused to do. Even in 1894 he was constrained to point out that American judicial behavior of defeating oblique contracts while recognizing valuable benefit to the promisor in other cases was inconsistent.40 He did not change his opinion that no sufficient detriment is ever incurred to support an oblique contract. However, when the external party's valuable benefit is allowed, the lack or insufficiency of detriment does not matter. The oblique unilateral contract usually exhibits the clearest benefit to the

promisor. "If the performance is sufficient consideration for a

after one has allowed "benefit to the promisor" to be relevant to the issue of contract formation.