OFFICE OF BINDING NOTIONS |
| DIRECTOR Hokolesqua Ottosen |
ABOUT
Let Us now inquire what shall be deemed a sufficient consideration to make a pact or covenant valid (a); for although in doing A consideration of some sort or other is so absolutely necessary to the forming of a contract, that a nudum pactum, or agreement to pay any thing on one side, without any compensation on the other, is actually void in law, and a man cannot be compelled to perform it;" 2 Bla. Com. 445. This definition of nudum pactum raises two questions: first, Whether every verbal agreement, without consideration, is nudum pactum? And, secondly, Whether any agreement can, for want of consideration, be nudum pactum, if such agreement be reduced into writing 1 The civil law is so generally referred to in the discussion of this subj ect, that it may be material to take a cursory view of the different means by which a legal obligation was created by that law, in order to shew, that, though we have borrowed the phrase nudum pactum from the civil law, and the rule which decides upon the nullity of its effect, yet, that the common law has not in any degree been influenced by the notions of the civil law, in defining what constitutes nudum pactum.
By the civil law obligations were created, either ex contractu, aut quasi ex contractu, aut maleficio, aut quasi ex maleficio: obligations induced ex contractu, which are alone necessary to our present investigation, " contrahuntur, aut re, aut verbis, aut literis, aut consensu ;" Inst. lib. 3. tit. 14. Obligations re interveniente were contracted by the intervention or delivery of the thing itself by one party, to the restitution of which, or of something equivalent in kind, the other party was obliged; Inst. lib. 3. tit. 15. Obligations created by words were termed stipulations; Inst. lib. 3. tit. 16The agreement or promise was authenticated, confirmed, and ratified, by answers given by the party promising to certain questions; and it derived its force and validity from the solemnity of its form, which was prescribed for the purpose of distinguishing the wellweighed and deliberate promise or agreement from the loose and inconsiderate. The question referred to the nature of the undertaking; as dare spondes ? spondeo —facere spondes aut facias?—faciam—promittis? promitto—&c. In no part of the solemnity does the consideration of the promise or agreement appear to have been adverted to, the civil law recognizing the right of a man to bind himself without any consideration, and merely interposing certain forms, in order to guard against surprise, and to evidence the terms and extent of the promise or undertaking.