CONSIDERATION,
contracts. A compensation which is paid, or all inconvenience suffered
by the, party from whom it proceeds. Or it is the reason which moves the
contracting party to enter into the contract. 2 Bl. Com. 443. Viner
defines it to be a cause or occasion meritorious, requiring a mutual
recompense in deed or in law. Abr. tit. Consideration, A. A
consideration of some sort or other, is so absolutely necessary to the
forming a good contract, that a nudum pactum, or an agreement to do or
to pay any thing on one side, without any compensation to the other, is
totally void in law, and a man cannot be compelled to perform it. Dr.
& Stud. d. 2, c. 24 3 Call, R. 439 7 Conn. 57; 1 Stew. R. 51 5 Mass.
301 4 John. R. 235; C. Yerg. 418; Cooke, R. 467; 6 Halst. R. 174; 4
Munf. R. 95. But contracts under seal are valid without a consideration;
or, perbaps, more properly speaking, every bond imports in itself a
sufficient consideration, though none be mentioned. 11 Serg. & R.
107. Negotiable instruments, as bills of exchange and promissory notes,
carry with them prima facie evidence of consideration. 2 Bl. Com. 445.
3.
The consideration must be some benefit to the party by whom the promise
is made, or to a third person at his instance; or some detriment
sustained at the instance of the party promising, by the party in whose
favor the promise is made. 4 East, 455; .1 Taunt. 523 Chitty on Contr. 7
Dr. & Stu. 179; 1 Selw. N. P. 39 , 40; 2 pet. 182 1 Litt. 123; 3
John. 100; 6 Mass. 58 2 Bibb. 30; 2 J. J. Marsh. 222; 5 Cranch, 142, 150
2 N. H. Rep. 97 Wright, It. 660; 14 John. R. 466 13 S. & R. 29 3 M.
Gr. & Sc. 321.
4.
Considerations are good, as when they are for natural love and
affection; or valuable, when some benefit arises to the party to whom
they are made, or inconvenience to the party making them. Vin. Abr.
Consideration, B; 5 How. U. S. 278; 4 Barr, 364; 3 McLean, 330; 17 Conn.
511; 1 Branch, 301; 8 Ala. 949.
5.
They are legal, which are sufficient to support the contract or
illegal, which render it void. As to illegal considerations, see 1 Hov.
Supp. to Ves. jr. 295; 2 Hov. Supp. to Ves. jr. 448; 2 Burr. 924 1 Bl.
Rep. 204. If the, performance be utterly impossible, in fact or in law,
the consideration is void. 2 Lev. 161; Yelv. 197, and note; 3 Bos. &
Pull. 296, n. 14 Johns. R. 381.
6.
A mere moral obligation to pay a debt or perform a duty, is a
sufficient consideration for an express promise, although no legal
liability existed at the time of making such promise. Cowp. 290 Bl. Com.
445 3 Bos. & Pull. 249, note; 2 East, 506; 3 Taunt. 311; 5 Taunt.
36; 13 Johns. R. 259; Yelv. 41, b, note; 3 Pick. 207. But it is to be
observed, that in such cases there must have been a good or valuable
consideration; for example, every one is under a moral obligation to
relieve a person in distress, a promise to do so, however, is not
binding in law. One is bound to pay a debt which he owes, although he
has been released; a promise to pay such a debt is obligatory in law on
the debtor, and can therefore be enforeed by action. 12 S. & R. 177;
19 John. R. 147; 4 W. C. C. R. 86, 148; 7 John. R. 26; 14 John. R. 178;
1 Cowen, R. 249; 8 Mass. R. 127. See 7 Conn. R. 57; 1 Verm. R. 420; 5
Verm. R. 173; 5. Ham. R. 58; 3 Penna. R. 172; 5 Binn. R. 33.
7.
In respect of time, a consideration is either, 1st. Executed, or
Something done before the making of the obligor's promise. Yelv. 41, a.
n. In general, an executed consideration is insufficient to support a
contract; 7 John. R. 87; 2 Conn. R. 404; 7 Cowen, R. 358; but an
executed consideration on request; 7 John. R. 87 1 Caines R. 584; or by
some previous duty, or if the debt be continuing at the time, or it is
barred by some rule of law, or some provision of a statute, as the act
of limitation, it is sufficient to maintain an action. 4 W. C. C. R. 148
14 John. R. 378 17 S. & R. 126. 2d. Executory, or something to be
done after such promise. 3d. Concurrent, as in the case of mutual
promises; and, 4th. A continuing consideration. Chitty on Contr. 16.
8.
As to cases where the contract has been set aside on the ground of a
total failure of the consideration, see 11 Johns. R. 50; 7 Mass. 14; 8
Johns. R. 458; 8 Mass. 46 6 Cranch, 53; 2 Caines' Rep. 246 and 1 Camp.
40, n. When the consideration turns out to be false and fails, there is
no contract; as, for example, if my father by his will gives me all his
estate, charged with the payment of a thousand dollars, and I promise to
give you my house instead of the legacy to you, and you agree to buy it
with the legacy, and before the contract is completed, and I make you a
deed for the house, I discover that my father made a codicil to his
will and by it be revoked the gift to you' I am not bound to complete
the contract by making you a deed for my house. Poth. on Oblig. part 1,
c. 1, art. 3, 6. See, in general, Obligation,, New Promise; Bouv. Inst.
Index. b. t,; Evans' Poth. vol. ii. p. 19; 1 Fonb. Eq. 335; Newl. Contr.
65; 1 Com. Contr. 26; Fell on Guarrant. 337; 3 Chit. Com. Law, 63 to
99; 3 Bos. & Pull. 249, n; 1 Fonb. Eq. 122, note z; Id. 370, note g;
5 East, 20, n.; 2 Saund. 211, note 2; Lawes Pl. Ass. 49; 1 Com. Dig.
Action upon the case upon Assumpsit, B Vin. Abr. Actions of Assumpsit,
Q; Id. tit. Consideration.
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