9 Geo Mason LRev 99

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2000]
THE SOPHISTICATED DOCTRINE OF CONSIDERATION

Val D. Ricks*
INTRODUCTION
The doctrine of consideration has been a favorite target of contract

law scholars for nearly a century. If they are not recommending its repeal,'
they are apologizing for its continued existence. 2 Yet the doctrine is obvi-
ously not offensive enough to warrant its overruling3 or replacement by
* Associate Professor of Law, South Texas College of Law, Houston, Texas. The author thanks
(i) Paul McGreal, Matthew Mirow, Scott Pryor, and John Worley for helpful discussions of prior
drafts; (ii) participants at the Southeastern Conference of the Association of American Law Schools for
helpful comments following presentation of this paper at one of the Association's Young Scholars
sessions of its annual meeting; (iii) Chad Dunn for helpful research assistance and careful reading; (iv)
South Texas College of Law for funding summer research; and (v) South Texas librarians David
Cowan and Monica Ortale for help in obtaining sources. Of course, these kind friends are not responsi-
ble for errors the author has allowed to remain.
I See Clarence D. Ashley, The Doctrineof Consideration,26 HARV. L. REV. 429 (1913); James
D. Gordon III, Consideration and the Commercial-Gift Dichotomy, 44 VAND. L. REV. 283 (1991)
[hereinafter Gordon, Commercial-Gift];James D. Gordon III, A Dialogue About the Doctrine of Con-
sideration, 75 CORNELL L. REV. 987 (1990) [hereinafter Gordon, Dialogue]; Ernest G. Lorenzen,
Causaand Consideration in the Law of Contracts, 28 YALE L.J. 621, 643-46 (1919); Roscoe Pound,
Individual Interests of Substance-PromisedAdvantages, 59 HARV. L. REV. 1, 38 (1945); Malcolm P.
Sharp, Pacta Sunt Servanda, 41 COLUM. L. REV. 783 (1941); Geoffrey R. Watson, In the Tribunal of
Conscience: Mills v. Wyman Reconsidered, 71 TUL. L. REV. 1749, 1801-03 (1997); Mark B. Wess-
man, Retainingthe Gatekeeper: FurtherReflections on the Doctrine of Consideration,29 LOY. L.A. L.
REV. 713 (1996) [hereinafter Wessman, Consideration 2]; Mark B. Wessman, Should We Fire the
Gatekeeper? An Examination of the Doctrine of Consideration, 48 U. MIAMI L. REV. 45 (1993)
[hereinafter Wessman, Consideration 1]; Lord Wright, Ought the Doctrine of Considerationbe Abol-
ished from the Common Law?, 44 HARV. L. REV. 1225 (1936); accord Law Revision Committee,
Report on the Statute of Frauds and the Doctrine of Consideration (Sixth Interim Report, Cmd. 5449,
1937) (law reform commission report recommending that the consideration doctrine be abolished in
the United Kingdom).
2 See Howard Engelskirchen, Consideration as the Commitment to Relinquish Autonomy, 27
SETON HALL L. REV. 490 (1997); Edwin W. Patterson, An Apology for Consideration, 58 COLUM. L.
REV. 930 (1963) ("[C]onsideration is not here defended as a perfect legal device in the best of possible
worlds. Its excrescences should be removed by legislation or judicial decision, and its principal alter-
native, promissory estoppel, should be expanded slowly by careful judicial empiricism. Even "pure"
gift-promises might be made enforceable with extreme and unusual safeguards. With these improve-
ments, one need never-well, hardly ever-apologize for the doctrine of consideration."); Lon L.
Fuller, Consideration and Form, 41 COLUM. L. REV. 799 (1941); Henry Winthrop Ballantine, Is the
Doctrine of ConsiderationSenseless and Illogical?, 11 MICH. L. REV. 423 (1913).
Some apologize for teaching the doctrine. See, e.g., Peter Linzer, ConsiderConsideration,44
ST. Louis U. L.J. 1317, 1317 (2000) ("Should we weave webs with it to sharpen our students' legal
analyses or demystify it by letting them know up front that it's really very easy and rarely matters in
practice?"--justifying teaching of consideration because it "makes us ask why we enforce promises").
3 See Arthur L. Corbin, Non-Binding Promises as Consideration,26 COLUM. L. REV. 550, 556
(1926) ("[T]he time has come to abandon the requirement of a consideration; but the existing decisions
show that the courts would not now follow such a rule."). Accordingly, the Restatement (Second) of
Contracts, reformist in many areas of contract law, retains the consideration requirement.
GEO. MASON L. REV. [VOL. 9:1
statute. 4 That set me wondering. Generally, doctrines that hang on for hun-
dreds of years have a wise and auspicious beginning.5 If consideration is in
such sad shape now, how did it operate at its beginning so as to persuade
lawyers to hang onto it since the sixteenth century?
Considerationentered the law 460 years ago as a central element of
the common law form of action called assumpsit.6 Most lawyers have
heard some short version of the rise of assumpsit.7 The common law of the
sixteenth century was organized around forms of action.8 Legal prohibi-
RESTATEMENT (SECOND) OF CONTRACTS 71 (1981).

4 Legislative agendas for consideration's demise were outlined in Paul R. Hays, Formal Con-
tracts and Consideration:A Legislative Program, 41 COLUM. L. REv. 849 (1941), and Law Revision
Committee, supra note 1. The Uniform Written Obligations Act, passed only in Pennsylvania and Utah
(but later repealed in Utah), was an attempt in part.
5 See, e.g., Val D. Ricks, In Defense of Mutuality of Obligation: Why "Both Should Be Bound,
or Neither", 78 NEB. L. REv. 491 (1999) (discussing the history of and continuing need for the mutu-
ality of obligation doctrine) [hereinafter Ricks, Mutuality]; Val D. Ricks, American Mutual Mistake:
Half-Civilian Mongrel, Consideration Reincarnate, 58 LA. L. REv. 663 (1998) [hereinafter Ricks,
Mutual Mistake]; David J. lbbetson, Fault and Absolute Liability in Pre-Modern Contract Law, 18
LEG. HIST. 1 (1997); John D. Wladis, Common Law and Uncommon Events: The Development of the
Doctrineof Impossibility of Performancein English ContractLaw, 75 GEO. L.J. 1575 (1987).
6 The requirement that plaintiffs allege a consideration or similar fact in a complaint in the
common law form of action called assumpsit was first mandated around 1539. David J. lbbetson,
Assumpsit and Debt in the Early Sixteenth Century: The Origins of the Indebitatus Count, 1982
CAMBRIDGE L.J. 142.
7 The most complete published history is A.W.B. SIMPSON, A HISTORY OF THE COMMON LAW
OF CONTRACT: THE RISE OF THE ACTION OF ASSUMPSIT (1975).
8 Professors Berman and Reid describe the genesis of the forms of action:
In establishing, in 1178, the Court of Common Pleas as the first permanent profes-
sional English royal court, Henry If had limited its civil jurisdiction to the types of
complaints for which the chancellor would issue a writ. At first, these were chiefly
complaints that alleged certain types of "trespasses" (as they came to be called)
against the rights of possession of land and chattels, as well as against the bodily
security of the person. Later, the chancellor also granted writs of "debt" for the
payment of money that the plaintiff claimed belonged to him, writs of "detinue" to
recover damages for the wrongful detention of the plaintiffs chattels, writs of "re-
plevin" for the return of chattels pledged for an obligation that had been fulfilled,
writs of "covenant" for breach of a sealed instrument containing a promise, and
various others. By the year 1300 there were dozens of different types of such
"forms of action" commenced by a royal writ issued to local royal officials (sher-
iffs), ordering them to have the defendant before the judges of Common Pleas or
King's Bench to answer the charges stated in the writ. In the fourteenth and fif-
teenth centuries, however, very few types of writs were issued, although one of
them, "trespass-on-the-case," was of great importance, because it gave a legal
remedy for certain types of harm to persons or property caused "indirectly" and
also for certain types of harm caused by failure to perform an act that the defen-
dant had specially undertaken to perform ("as-sumpsit"). In the 1530s and 1540s, a
new form of trespass-on-the-case called indebitatus assumpsit gave a remedy for
breach of certain types of obligations for which there was no express undertaking
but one could be implied because the defendant was "indebted," as when the de-
fendant had received something of value from the plaintiff and, in the absence of
an agreement on the price, would not pay for the benefit he obtained.
Harold J. Berman & Charles J. Reid, Jr., The Transformation of English Legal Science: From Hale to
Blackstone, 45 EMORY L.J. 437, 451-52 (1996). A more detailed description of the method of pleading
and procedure in the royal courts in the early sixteenth century is found in John H. Baker, Introduction
83-123, in I1 THE REPORTS OF SIR JOHN SPELMAN (Selden Soc. 1978) [hereinafter II SPELMAN'S
2000] THE SOPHISTICATED DOCTRINE OF CONSIDERATION
tions on conduct and, conversely, protections of freedom often took the

shape of procedural limitations on these forms of action. In the common
law system, a wrong could be remedied or a right vindicated only if it fit
within a form. But the common law had a general, residual form of action
in which wrongs could be alleged and remedied that were not covered by
other forms. This general form was called trespass on the case. Judges in
the late fifteenth and early sixteenth centuries began enforcing promises
generally in a species of trespass on the case called assumpsit.9 Assumpsit
is a past tense form of the Latin verb meaning "to undertake." To promise
was to undertake. Breach of a promise or undertaking became known as a
trespass.10
Plaintiffs' lawyers preferred assumpsit to older, less straightforward
forms for enforcing promises, such as covenant and debt.11 The assumpsit
action took a simple approach to promise enforcement by focusing pri-
marily on three questions. First, was a promise made? Second, was the
promise worthy of enforcement, i.e. was it the kind of promise that should
be actionable? And third, was the promise breached?12 Jury decisions as to
questions one and three were generally allowed to stand. Juries were com-
petent to say whether a promise and breach had occurred. But judges occa-
sionally asserted control over juries by deciding question two as a matter
of law.
REPORTS].
9 Promise enforcement actually began in assumpsit in the mid-fourteenth century. See ROBERT
C. PALMER, ENGLISH LAW IN THE AGE OF THE BLACK DEATH, 1348-81, 169-213 (1993). But then
throughout the fifteenth century, judges seemed to retrench, claiming that an omission or nonfeasance
such as breach of promise was not a trespass. See Baker, I!SPELMAN'S REPORTS, supra note 8, at 255-
86; SIMPSON, supra note 7, at 199-280; S.F.C. Milsom, Not Doing Is No Trespass: A View of the
Boundaries of Case, in STUDIES IN THE HISTORY OF THE COMMON LAW 91-103 (1985).
10 A statement made in 1499 and attributed to Chief Justice Fyneux claims that "if a man makes
a covenant to build me a house by a certain date, and does nothing about it, I shall have an action on
my case for this nonfeasance as well as if he had built badly, because I am damaged by it." J.H. BAKER
& S.F.C. MILSOM, SOURCES OF ENGLISH LEGAL HISTORY: PRIVATE LAW TO 1750, 401 (1986) [here-
inafter BAKER & MILSOM]. Still, lawyers continued to make the argument that nonfeasance was not
actionable in trespass on the case. The argument makes one of its last gasps in 1532, in Pykerying v.
Thurgoode, II SPELMAN'S REPORTS, supra note 8, at 4-6 (K.B. 1532), which rejected it.
11 They preferred assumpsit to covenant and debt for a number of reasons. Covenant was limited
to written, sealed promises. Assumpsit was not. Debt actions were limited to cases in which damages
were liquidated, and in which certain factual premises existed, and trial of factual issues in certain
classes of debt cases was by jury or by "wager of law," as the defendant might elect. A defendant
waged his law by (a) swearing an oath that he was not indebted to the plaintiff and (b) producing
eleven other "compurgators" or oath-helpers to swear that the defendant's oath was credible. Wager of
law, correctly done, was a complete defense. It was thus possible to lie one's way out of a debt. In
assumpsit, by contrast, the jury set damages, the factual circumstances in which assumpsit might be
used were open-ended, and wager of law was unavailable.
12 See Goldings' Case, 2 Leon. 72, 74 Eng. Rep. 367 (1586) (Egerton for the defendant) ("In
every action upon the case upon a promise, there are three things considerable, consideration, promise
and breach of promise.").
For largely historical reasons,1 3 sixteenth century judges' decisions as

to which kinds of promises were actionable usually took the form of giving
meaning to the word consideration. The law required this word to be al-
leged in nearly every plaintiff's assumpsit pleading. Besides promise and
breach, the only other concept common to every assumpsit complaint was
consideration.This word was therefore the most likely candidate for legal
development within the form of action. If a jury found for a plaintiff, then
the plaintiffs pleadings relative to promise, consideration, and breach be-
came findings of fact, and judges could then rule on them as a matter of
law. Judges turned to construction of this murky word consideration in
order to limit the jury's power to remedy breach of promise, in order to say
which kinds of promises were actionable and which were not.
Constructions of the murky word eventually became doctrinal, though
this was not inevitable. Judges could have changed the word, added other
words, or perhaps developed other kinds of actions. But they did not. Con-
struction of consideration seems to have been acceptable to them. Why
was it? It's not a descriptive word. It tells us little by itself and in the end
the word bears little relationship to the technical constructions given to it.
If sixteenth century judges were reasonable, and the historian of ideas must
assume they were to some extent, then some reasonable explanation must
exist to account for consideration's seemingly unlikely success.
Others have attempted this explanation. 4 Students of common law
history owe a debt to Simpson, 5 Baker, 6 and Ibbetson 7 for finding and
reviewing many previously unpublished reports and, in some cases, the
pleadings of cases establishing the consideration doctrine. The focus of
these authors' efforts has been to explain how and why the consideration
doctrine developed. These authors do so admirably. Ibbetson has argued
that the core of the consideration doctrine and the assumpsit action gener-
13 How a requirement besides promise and breach first came into the law of assumpsit is best
explained in lbbetson, supra note 6; JOHN H. BAKER, THE LEGAL PROFESSION AND THE COMMON
LAW 369-74 (1986). Other helpful discussion is available at Baker, II SPELMAN'S REPORTS, supra note
8, at 286-98; and SIMPSON, supra note 7, at 316-405.
14 This obligatory footnote is supposed to cite to the works of the dozen and a half or so most
prominent authors who have written on the early history of consideration. I propose to resist the temp-
tation to redo the list. See instead, e.g., BAKER, supra note 13, at 369 n.1; KEVIN M. TEEVEN, A
HISTORY OF THE ANGLO-AMERICAN COMMON LAW OF CONTRACT 57 n.79 (1990). Baker and Teeven
list works by Frederick Pollock, Christopher Columbus Langdell, Oliver Wendell Holmes, J.I. Clark
Hare, John W. Salmond, James Barr Ames, W.T. Barbour, C.H.S. Fifoot, T.H.F. Plucknett, A.K.
Kiralfy, S.F.C. Milsom, W.M. McGovem, J.L. Barton, A.W.B. Simpson, and S.J. Stoljar. To this list, I
would add Baker and Teeven themselves, and David J. lbbetson, supra note 6 & infra note 17.
15 See SIMPSON, supra note 7.
16 See BAKER, supra note 13, at 369; Baker, II SPELMAN'S REPORTS, supranote 8, at 255-98.
17 DAVID J. IBBETSON, A HISTORICAL INTRODUCTION TO THE LAW OF OBLIGATIONS (1999)
[hereinafter IBBETSON, OBLIGATIONS]; David J. Ibbetson, Considerationand the Theory of Contract in
Sixteenth Century Common Law, in TOWARDS A GENERAL LAW OF CONTRACT 67 (John Barton, ed.
1990) [hereinafter lbbetson, Consideration];Ibbetson, supra note 6, at 142,
ally was exchange or reciprocity. 8 I agree with this position and give an
explanation in Part I of how consideration doctrine reflected this point.
But in focusing on how the doctrine developed and why it was suc-
cessful, these authors fail to stress an important facet of consideration's
success: namely, that it was incomplete. Consideration did not succeed
completely, even in the sixteenth century. In many assumpsit cases of that
period, courts either fictionalized the consideration requirement or dropped
it altogether. The courts' willingness to make these two moves shows that
consideration was not at its inception a hard and fast requirement for re-
covery in assumpsit or contract. Consideration was not "the" gatekeeper
but "a" gatekeeper. 19
Part I shows that consideration required exchange or reciprocity. As
Ibbetson and Baker suggest, this idea best explains the core of the doctrine
as reflected in the assumpsit pleading form and the courts' decisions.
Though I accept the exchange view as paradigmatic, I recognize with
Simpson and others that some common law decisions always employed a
broader definition in which consideration meant any good reason for
promising.2" This broader definition was itself partly fictional, however,
because it was inconsistent with the pleading form and inconsistent with
central leading decisions. 2 And even Simpson's broad definition does not
account for all of the innovations I discuss in Part II.22 There was more to
the law's judicious use of consideration than a broad definition.23
18 Ibbetson, Consideration, supra note 17, at 106 ("Behind the action of assumpsit as it had
developed in the second half of the sixteenth century, there was essentially a bargain model of con-
tract."); IBBETSON, OBLIGATIONS, supra note 17 at 141-45.
19 Consistent with courts' treatment of consideration outlined in this article, lbbetson describes
how courts vacillated between tortious and contractual theories of assumpsit during the sixteenth
centurty: "[C]ourts did not treat all actions of assumpsit as equivalent, all based on the wrong of breach
of promise. On the contrary, they were willing to look beyond the formal fagade of the action at the
substance of what lay beneath .... " IBBETSON, OBLIGATIONS, supra note 17, at 134. Ibbetson does
not discuss how the courts manipulated the consideration doctrine in their attempts to get a substance,
however, except with respect to marriage promises and cases of indebitatus assumpsit (discussed
herein infra Part If.C). Id. at 141-45; IBBETSON, Consideration, supra note 17, passim.
20 See, e.g., SIMPSON, supra note 7, at 406-70; Ricks, Mutual Mistake, supra note 5, at 694-710,
715-25, 730-45. Simpson also recognizes a meaning of consideration focussing on a good reason for
actionability. SIMPSON, supra note 7, at 407. Baker sees in consideration the notion of reliance. Baker,
II SPELMAN'S REPORTS, supra note 8, at 295.
21 See infra Part l.A and notes 24-38.
22 See infra notes 59 & 205.
23 Milsom wrote that consideration "has always been just the label on a package containing
many of the separate rules about the liabilities which may arise in the context of a transaction." S.F.C.
MILSOM, HISTORICAL FOUNDATIONS OF THE COMMON LAW 360 (2d ed. 1981). Milsom's is perhaps
the broadest definition-no definition at all. One can only conclude that consideration was "just a
label" if one sees no substantive principle at work in the decisions, however. Neither Ibbetson, Baker,
nor Simpson were willing to follow Milsom's contentless approach. See Ibbetson, Consideration,
supra note 17, at 67; David J. lbbetson, Sixteenth Century Contract Law: Slade's Case in Context, 4
OXFORD J. LEGAL STUD. 295 (1984) [hereinafter lbbetson, Sixteenth Century ContractLaw]; BAKER,
supra note 13, at 369; Baker, II SPELMAN'S REPORTS, supra note 8, at 286-97; SIMPSON, supra note 7,
GEO. MASON L. REV. [VOL. 9:1I
Part II shows how sixteenth century judges bent or disregarded the

consideration/exchange requirement to enforce promises that we now en-
force as promissory estoppel, moral obligation, and quasi-contract/unjust
enrichment. It also shows courts dodging the consideration requirement to
hold that debts survived the death of the debtor. Finally, in some cases,
courts granted relief on the basis of mutual assent without any considera-
tion, and lawyers argued that promises should be actionable solely because
they were intended to make an economic return more probable (even when
none resulted)--a topic generating much argument in scholarly circles
today.24 These flexible decisions, in which consideration did not succeed,
occurred largely between 1560 and 1605-the generation in which lawyers
and judges first developed the consideration doctrine-a period blessed
with able advocates and jurists. By 1605, their decisions were becoming
more solidified, and development along some of the lines discussed
slowed or stopped. I conclude by suggesting the relevance this research
may have to the consideration doctrine today: A modem reevaluation of
the consideration doctrine would be unnecessary if judges today viewed
the doctrine as it was viewed in Elizabethan times, as sophisticated and
flexible. If this were the case, the doctrine would remain useful for years
to come.
I. THE SUBSTANTIVE CONSIDERATION DOCTRINE IN THE LATE

SIXTEENTH CENTURY
As noted, students of legal history owe a debt to historians for expli-

cating in some detail numerous decisions regarding consideration in the
late sixteenth century. I draw on their work in this part, but cite primarily
to case reports readily available. Initially, a valid consideration on which
to base an action in assumpsit required two elements: reciprocity and a
proper form.
at 406-88. (Nor does my study lead to that conclusion. See infra Part I.) Milsom noted that he had not
studied the plea rolls with regard to the question, and "only the plea rolls will show us with certainty
the regular and central allegation that seemed to plaintiffs sufficient." MILSOM, supra, at 358. Baker
and lbbetson's work cited here includes an examination of the plea rolls for the relevant periods.
24 See Randy E. Barnett, The Death of Reliance, 46 J. LEGAL EDUC. 518 (1996); Richard
Craswell, Offer, Acceptance, and Efficient Reliance, 48 STAN. L. REV. 481 (1996); Melvin A. Eisen-
berg, Probabilityand Chance in ContractLaw, 45 UCLA L. REV. 1005 (1998); Daniel A. Farber &
John H. Matheson, Beyond PromissoryEstoppel: Contract Law and the "Invisible Handshake ", 52 U.
CHI. L. REV. 903 (1985); Gordon, Commercial-Gift,supra note 1;Gordon, Dialogue, supra note 1;
Wessman, ConsiderationI, supra note 1.Roscoe Pound suggested a similar idea, see Pound, supra
note 1,at 40 ("[l~t does not follow that promises made by business men in business dealings or by
others in business transactions are in any wise likely to proceed from 'ostentation' or that we should
hesitate to make them as binding in law as they are in business morals.").
A. Reciprocity
Reciprocity, or recompense, was associated with consideration as

concepts associated with consideration were coalescing into doctrine in the
1560s. Fletewood and Wray argued against a finding of consideration in
Sharington v. Strotton (1565), which involved the validity of a use:
Nothing new is here done on one side or the other, as is requisite in contracts and also in a
covenant upon consideration. For instance, if I sell my horse to someone for money, or for
some other recompense, here is a thing given on both sides (namely, one gives the horse
and the other the money or other recompense), and therefore it is a good contract. Likewise
in the case of the covenant upon consideration: for instance, if I covenant with you that if
you marry my daughter you will have my land,... here is 25an act on each side ....Thus
there is an act done and a fresh cause arising from each side.
Dyer later suggests this same idea in the assumpsit arena: "A consideration
is causa meritoria for which he granted, and it may be called very well
causa reciproca, sc. un mutuall cause. ,,aLater cases also describe
consideration as recompense. 7 In an assumpsit case where both promise
and consideration must be alleged, the combination of promise and the
requirement of causa reciproca means that the promise is given for the
consideration, and vice versa.
Holdings that a past consideration is insufficient reiterate that recipro-
cal causation is required: a present promise cannot be fresh cause for a past
act.28 In fact, the requirement of a present bargain is established in the past
consideration rule and the assumpsit pleading form, which required the
plaintiff to allege that the defendant "in consideration of X, undertook Y."
This pleading form thereby required that the consideration induce the
25 Sharington v. Strotton, Plowden 298, 301, 75 Eng. Rep. 454, 458 (K.B. 1565) (Fletewood &
Wray, counsel). Sharington involved not a promise, but a declaration of trust, yet counsel argued in
1565 as if the assumpsit and trust requirement of consideration were one and the same. See, e.g.,
BAKER, supra note 13, at 376-77; SIMPSON, supra note 7, at 327-74.
26 John H. Baker, Introduction xxx n.82, in REPORTS FROM THE LOST NOTEBOOKS OF SIR JAMES
DYER VOL. I(Seldon Soc. 1994) (quoting Lord Gerard's Case, LI MS Misc. 361, fo. 22r (1581)). Dyer
expressed a similar though perhaps less helpful definition in Calthorpe's Case, 3 Dyer 334b, 336b, 73
Eng. Rep. 756, 759 (K.B. 1574) (a case involving not assumpsit but uses): "A consideration is a cause
or meritorious occasion, requiring a mutual recompense, in fact or in law. Contracts and bargains have
a quid pro quo."
27 E.g., Martin v. Vaux, Noy 8, 9, 74 Eng. Rep. 979, 980 (argument of counsel).
28 See, e.g., Hunt v. Bate, 3 Dyer 272a, 73 Eng. Rep. 605, (C.P. 1568) (cited in BAKER &
MILSOM, supra note 10, at 494); Sidenham v. Worlington, Godbolt 31, 78 Eng. Rep. 20, Cro. Eliz. 42,
78 Eng. Rep. 306, 3 Dyer 272a, 272b n.32, 73 Eng. Rep. 605, 606, 2 Leon. 224, 74 Eng. Rep. 497
(C.P. 1585); Moore v. Williams, Moore 220 pl.357, 72 Eng. Rep. 542 (1585); Sheffield v. Rise,
Moore 367, 72 Eng. Rep. 634 (K.B. 1594) (objection of counsel); Jeremy v. Goochman, Cro. Eliz. 442,
78 Eng. Rep. 683 (C.P. 1595); Turgys v. Becher, 419 (Ex.Ch. 1596) (cited in BAKER & MILSOM, supra
note 10, at 418); Barker v. Halifax, Cro. Eliz. 741, 78 Eng. Rep. 974, Dyer 272b n.32, 73 Eng. Rep.
605, 606 (C.P. 1600); Dogget v. Dowell, Cro. Eliz. 885, 78 Eng. Rep. 1110, Owen 144, 74 Eng. Rep.
962, Moore 643, 72 Eng. Rep. 812 (C.P. 1602); Thorner v. Field, I Bulst. 120, 80 Eng. Rep. 816 (K.B.
1611).
promise.2 9 The past consideration rule required that the promise induce the
consideration. Thus, promise and consideration had to induce-be fresh
cause for-each other. The bargain requirement in this rough form was
established when courts rejected past consideration in 1568.30 Courts also
held that performance of an act that one had a prior duty to perform was
not consideration. 3' These cases also prove that the reciprocity principle
guided thought about consideration: a present promise was not the real
cause of performance of a prior duty.
The law retains reciprocity today as the requirement that the consid-
eration be "bargained-for," or given in exchange, or that the consideration
and promise mutually induce one another, or be the motive each for the
32
other.
29 See, e.g., Sidenham v. Worlington, 2 Leon. 224, 225, 74 Eng. Rep. 497, 498 (C.P. 1585)
(Periam, J: "[To maintain an action upon an assumpit,... it is sufficient, if there be a moving cause or
consideration precedent; for which cause or consideration the promise was made; and such is the
common practice at this day: for in an action upon the case, upon a promise, the declaration is laid, that
the defendant, for, and in consideration of 201, to him paid, (postea scil.) that is to say, at a day after
super se assumpit, and that is good."); id. at Godb. at 31-32, 78 Eng. Rep. at 20 (reporting Periam's
speech nearly identically); BAKER, supra note 13, at 371-74. All of the examples Baker lists from the
1540s include some element of inducement. Baker suggests they meant, roughly, "for," "in return for,"
"because of," "having taken into consideration," or "being moved by." Id.; see also Ibbetson, Consid-
eration, supra note 17, at 84.
30 Hunt v. Bate, 3 Dyer 272a, 73 Eng. Rep. 605 (C.P. 1568) (cited in BAKER & MILSOM, supra
note 10, at 494). This conclusion is somewhat tentative because courts did recognize the efficacy of
past consideration if it was done at the prior request of the promisor. The second half of Hunt says, in
fact:
But in another like action on the case brought upon a promise of twenty pounds
made to the plaintiff by the defendant in consideration that the plaintiff, at the
special instance of the said defendant, had take to wife the cousin of the defendant,
that was good cause, although the marriage was executed and past before the un-
dertaking and promise, because the marriage ensued at the request of the defen-
dant. * * * * And therefore the opinion of the Court in this case this Term was,
that the plaintiff should recover upon the verdict, &c. And so note the diversity
between aforesaid cases [one of which had no prior request and was merely past
consideration and the other of which showed a prior request].
Id. I don't see the prior request rule as an obstacle to the establishment of a mutual inducement re-
quirement, however. The purpose of requiring a prior request was to connect the promise causally with
the consideration. Ibbetson agrees. lbbetson, Consideration,supra note 17, at 88-96 (arguing that an
agreed exchange was the theory that lay behind the prior request rule).
31 See, e.g., Greenleaf v. Barker, I Leon. 238, 74 Eng. Rep. 217, Cro. Eliz. 193, 78 Eng. Rep.
449 (K.B. 1590) (Croke: "The consideration was not good, for he did no more than the law did compel
him to do, viz to pay the money that was due before.-And so was the opinion of Gawdy and Fenner,
Justices, for he payeth no more than was due; ... for every consideration must be for the benefit of the
defendant,.. . or a thing done by the plaintiff, for which he laboureth, or hath prejudice."); Reynolds v.
Pinhowe, Cro. Eliz. 429, 78 Eng. Rep. 669, Moore 412, 72 Eng. Rep. 663 (K.B. 1594) (Croke: objec-
tion of counsel); Dixon v. Adams, Cro. Eliz. 538, 78 Eng. Rep. 785 (reporting the judgment reversed),
Moore 710, 72 Eng. Rep. 856 (reporting the judgment reversed), Noy 36, 74 Eng. Rep. 1006 (reporting
the consideration good), Goulds. 157, 75 Eng. Rep. 1062 (reporting the judgment affirmed) (1596).
The reports of Dixon are very confusing, but no report expresses disagreement with the principle for
which it is cited here.
32 See, e.g., Banque Arabe et Intemationale D'Investissement v. Bulk Oil (USA), Inc., 726 F.
Supp. 1411, 1419 (S.D.N.Y. 1989) (quoting Tuition Plan, Inc. v. Zicari, 70 Misc.2d 918, 335 N.Y.S.2d
B. ProperForm
If recompense was given or to be given in exchange for a promise,

still the common law would not recognize it unless it came in the proper
form. Proper form included the following types: a benefit to the promisor,
a charge to or labor of the promisee, or a reciprocal or mutual promise.
1. A Benefit to the Promisor, or a Charge to or Labor of the Prom-

isee
The recompense or reciprocity principle is consistent with considera-

tion's most common formulation in the sixteenth century: a "benefit to the
defendant [promisor] or charge to the plaintiff [promisee]." This expres-
sion predominated thought on consideration in the 1580s and 1590s, as
shown by the number of decisions holding, without investigating any other
potential form of consideration, that consideration was absent solely be-
cause no benefit or charge appeared.33
Typically, consideration was both a benefit to the promisor and a det-
riment to the promisee given reciprocally for a promise.34 But a benefit
85, 100 (Dist. Ct. 1972)) ("[T]he promise and the consideration must purport to be motive each for the
other."); Andre v. Gaines Berland, Inc., No. 95 Civ. 10524 (D.C.), 1996 U.S. Dist. Lexis 9383, at *5
(S.D.N.Y. July 8, 1996) ("The consideration may be anything that induces a bargained for exchange.");
Player v. Alabama Dept. of Pensions & Sec., 400 F. Supp. 249, 265 (M.D. Ala. 1975) ("[The bar-
gained-for consideration [must] induce[ ] the [party] to contract."); Kirkpatrick v. Boston Mut. Life
Ins. Co., 393 Mass. 640, 652, 473 N.E.2d 173, 180 (1985) ("[T]he consideration [must] be 'bargained
for'-i.e ... it [must] induce the making of the promise."); Hayes v. Plantations Steel Co., 438 A.2d
1091, 1094 (R.I. 1982) ("Valid consideration furthermore must be bargained for. It must induce the
return act or promise."). What happened to consideration in the interim is a subject of dispute, but the
law shows a great deal of continuity with regard to the consideration doctrines themselves. E.g.,
A.W.B. Simpson, The Horwitz Thesis and the History of Contracts, 46 U. CHI. L. REV. 533 (1979).
Many of the leading sixteenth century cases discussing the bargain principle retained their vitality
through the nineteenth century. Langdell taught many of them, in fact. See CHRISTOPHER COLUMBUS
LANGDELL, A SUMMARY OF THE LAW OF CONTRACTS (2d ed. 1880, reprinted by Rothman 1980).
33 See, e.g., Richards v. Bartlet, I Leon. 19, 20, 74 Eng. Rep. 17, 18 (K.B. 1584) (stating in
response to a plea in bar: "[N]o profit but damage comes to the plaintiff by this new agreement, and the
defendant is not put to any labour or charge by it, therefore here is not any agreement to bind the
plaintiff."); Smith v. Smith, 3 Leon. 88, 74 Eng. Rep. 559 (K.B. 1584); Stone v. Withipole, at 499
(quoting from YLS MS G. R29.6, fo. 18 (K.B.)) (1589) (cited in BAKER & MILSOM, supra note 10, at
498); Greenleaf v. Barker, Cro. Eliz. 193, 78 Eng. Rep. 449, 1 Leon. 238, 74 Eng. Rep. 217 (K.B.
1590); Bowes v. Paulet, Cro. Eliz. 653, 78 Eng. Rep. 892 (K.B. 1599). This kind of thinking seems to
underlie other decisions as well. See, e.g., Lutwich v. Hussey, Cro. Eliz. 19, 78 Eng. Rep. 286 (C.P.
1583) (holding the plaintiff's forbearing suit paululum cessaret not consideration "for it is not said for
how long he should forbear; for if he did forbear for a quarter of an hour or less, he hath performed the
word."); Ross v. Moss, Cro. Eliz. 560, 78 Eng. Rep. 805 (1597) (promise to relinquish a suit without
prejudice held no consideration, "for he might relinquish it today, and afterwards begin it again: [the
plaintiff] ought also to have averred, that the action which he was to discharge was actionable," other-
wise relinquishing it would have been no detriment); Fereby v. Lurkyn, Cro. Eliz. 566, 78 Eng. Rep.
810, Noy 65, 74 Eng. Rep. 1033 (C.P. 1597) (holding a promise to make a lease not consideration
because the lease "may be any lease, viz. at will, which he might determine presently").
34 E.g., Scroggs v. Griffin, Cro. Eliz. 205, 78 Eng. Rep. 462, 2 Leon. 215, 74 Eng. Rep. 489
GEO. MASON L. REV. [VOL. 9:1l
alone would serve.35

If no benefit accrued to the promisor, perhaps the promisor was not
recompensed; but if the promisee labored at the promisor's instigation, the
labor was a cause of the promise, as well as vice versa. For instance, a
promisor might promise in order to induce the promisee to labor on behalf
of a third person.36 Similarly, the promisee, in response to the promisor's
promise of recompense, might try to generate a benefit for the promisor,
but in the end fail, and thus no benefit would accrue to the promisor. In
that situation, the promisee's labor was consideration even though it gen-
erated no benefit for the promisor.3 7 "Benefit to the promisor or detriment
to the promisee" remains today the most common manner in which courts
describe consideration's requisite form.3 8 The Restatement (Second) of
(1588) (payment of money); Royle v. Bagshaw, Cro. Eliz. 149, 78 Eng. Rep. 407 (1589) (delivery of
malt); Byne and Playnes' Case, I Leon. 220, 74 Eng. Rep. 202, Cro. Eliz. 218, 78 Eng. Rep. 474
(1590) (delivery of goods); Brown and Ordinacre's Case, 2 Leon. 112, 74 Eng. Rep. 402 (1590) (for-
bearance to sue for one week); Martin v. Vaux, Noy 8, 74 Eng. Rep. 979, 980 (forbearance to sue for
three months); Hatch & Capel's Case, Godb. 202, 78 Eng. Rep. 123 (1613) (plaintiff would serve
defendant beer in exchange for her promise to pay for her own and her deceased husband's beer). If the
consideration given was already due by law, it was not counted as given reciprocally for the promise.
Greenleaf v. Barker, Cro. Eliz. 193, 78 Eng. Rep. 449, 1 Leon. 238, 74 Eng. Rep. 217 (K.B. 1590).
35 E.g., Retchford v. Spurlinge (K.B. 1591) (cited in BAKER & MILSOM, supra note 10, at 501-
02) ("[H]aving the money in his hands for only a day, or an hour, is such a profit to Spurlinge that it
shall be called sufficient consideration."); Reynolds v. Pinhowe, Cro. Eliz. 429, 78 Eng. Rep. 669,
Moore 412, 72 Eng. Rep. 663 (K.B. 1594) (Croke: "[1It is benefit unto him to have [the money] with-
out suit or charge"; and Moore: "[S]peedy payment excuses & prevents travail & expense of suit.");
Cook v. Songate, I Leon. 103, 74 Eng. Rep. 96, 4 Leon. 31, 74 Eng. Rep. 708 (K.B. 1588) ("[l]t was to
avoid variances and suits .... ");Hunt's Case, Owen 42, 74 Eng. Rep. 886, 2 Leon. 107, 74 Eng. Rep.
397, Cro. Eliz. 118, 78 Eng. Rep. 376 (C.P. 1588) (Owen: "[Hunt] declared that he being seised of
lands in Swainton in Norf. in fee,... in consideration [that Hunt] would permit [Sone] to occupy the
same for the space of five years," did promise to pay).
36 E.g., Foster's Case, 3 Dyer 272a, 272a n.31, 73 Eng. Rep. 605 n.31 (c. 1596) (defendant
promised in exchange for plaintiff's giving money to a stranger); Baxter v. Read, 3 Dyer 272a, 272b
n.32, 73 Eng. Rep., 605, 606 n.32 (c. 1585).
37 E.g., Webb's Case, 4 Leon. 110, 74 Eng. Rep. 763 (1576) (plaintiff labored only to obtain a
letter of attorney which would allow the defendant to sue the defendant's debtor's debtor; the letter
only gave the defendant possibility of a benefit, not a real benefit-at least that is what the report
seems to imply the lawyers thought: "For in this case not so much the profit which redounds to the
defendant, as the labour of the plaintiff in procuring of the letter of attorney, is to be respected.");
Dellaby and Hassel's case, I Leon. 123, 74 Eng. Rep. 114 (1588) (plaintiff labored to "merchandize
diverse goods to the profit of the defendant" but alleged no profit, only labor; no ruling on the consid-
eration itself, the arguments revolving around whether the plaintiff made a sufficient request for pay-
ment); Gurnons v. Hodges, Yelv. 12, 80 Eng. Rep. 9 (K.B. 1602) ("[A]nother exception was taken,
because it appear'd that the consideration was only upon a conareturprocurare, which is no effectual
consideration; for an endeavour to do such an act, without doing it in fact, is no benefit to the defen-
dant; sed non allocatur;for (by Popham) his labour and pains may deserve the money due upon the
assurmpsit.").
38 See, e.g., Michalski v. Circuit City Stores, 177 F.3d 634, 636 (7th Cir. 1999) ("In order for a
contract to be enforceable under Wisconsin law, there must be consideration, which may be either a
detriment to the promisor or a benefit to the promisee."); Johnson Enters. of Jacksonville v. FPL
Group, 162 F.3d 1290, 1311 (11 th Cir. 1998) ("The courts in general require that before mutual prom-
ises will be enforced, each as the consideration of the other, each party must promise to do something
Contracts
39
mandates the same form by requiring bargained-for "perform-
ance."
2. A Reciprocal or Mutual Promise
The common law courts also recognized that a reciprocal promise

was consideration. 40 Attempts to reconcile the reciprocal promise rule with
the supposed need for valuable recompense 4 I have caused confusion.42
Some have supposed that a promisee's promise has value only if it is en-
forceable.43 If this supposition holds, then a reciprocal promise by the
promisee is consideration only if it is enforceable. But if the promisee's
promise is enforceable only if it is given for consideration, and the promi-
sor's reciprocal promise is consideration only if it also is valuable because
it is enforceable, then the enforceability of each promise turns on the en-
forceability of the other, and the reciprocal promise rule rests on a circu-
which will yield a benefit or advantage to the other, or which will result in a detriment or disadvantage
to himself in exchange for the other promise." (internal quotations omitted)); DeJean v. United Air-
lines, Inc., 839 P.2d 1153, 1160 (Colo. 1992) ("A benefit to the promisor or a detriment to the prom-
isee can constitute consideration, however slight."); Blonder v. Gentile, 309 P.2d 147, 151 (Cal. Ct.
App. 1957) ("A consideration is sufficient to support a contract if it is either beneficial to the promisor
or detrimental to the promisee .... ).
39 RESTATEMENT (SECOND) OF CONTRACTS 71 (1981) ("To constitute consideration, a
performance ... must be bargained for .... The performance may consist of (a) an act other than a
promise, or (b) a forbearance, or (c) the creation, modification, or destruction of a legal relation.").
40 E.g., West and Stowell's Case, 2 Leon. 154 (C.P. 1577) (Mounsen, J: "[H]ere the considera-
tion is sufficient, for here this counterpromise is a reciprocal promise, and so a good consideration
, but Manwood,
... J, argued the reciprocal promise rule should not apply to the facts of West); Cook
v. Songate, I Leon. 103, 74 Eng. Rep. 96, 4 Leon. 31, 74 Eng. Rep. 708 (K.B. 1584) (alleging recipro-
cal promises, but recording Justice Gawdy's ruling so ambiguously that one cannot tell whether the
court is resting on the reciprocal promise rule); Fuller's Case, Godbolt 94, 78 Eng. Rep. 58, Goulds.
32, 75 Eng. Rep. 975 (C.P. 1586) (Periam J and two serjeants discussing whether the reciprocal prom-
ise rule applied); Kirby v. Eccles, 1 Leon. 186, 74 Eng. Rep. 171, Cro. Eliz. 137, 78 Eng. Rep. 394
(K.B. 1589) (Croke: "[The defendant] had no benefit... ; yet that was not material; for the action was
grounded upon the promise and deceit: so here."); Strangborough and Warner's Case, 4 Leon. 3, 74
Eng. Rep. 686 (K.B. 1589); Gower v. Capper, Noy 61, 74 Eng. Rep. 1029 (K.B. 1596); Lea v. Exelby,
Cro. Eliz. 888, 78 Eng. Rep. 1112 (1602); Hurleton v. Web, Benloe 150, 73 Eng. Rep. 1003 (K.B.
1624) (per Dodderidge).
41 See, e.g., Sackford v. Philipps, Owen 109, 110 74 Eng. Rep. 936, 936 (Exch. Ch. 1595)
(Periam, J: "The consideration upon which an assumpsit is grounded ought to be of value .... ");
Mores v. Conham, Owen 123, 124, 74 Eng. Rep. 946, 947 (C.P. 1609) (Cook, Warburton, and Daniell,
JJ, approving a consideration because it was "good, legall [sic], and profitable").
42 See, e.g., Ricks, Mutuality, supra note 5, at 491 (describing various reconciliation attempts).
43 Many commentators have assumed that a reciprocal promise is valuable only if it is enforce-
able. See, e.g., IBBETSON, supra note 17, at 86; Christopher Columbus Langdell, Mutual Promises as a
Considerationfor Each Other, 14 HARv. L. REv. 496 (1901); Oliver Wendell Holmes, infra note 44.
But some sixteenth century judges apparently made this assumption, also. See, e.g., BAKER, supra note
13, at 382-83 (discussing an action in assumpsit to enforce a wager, which only one party could win;
Baker reports that two judges felt there was no consideration for the loser's promise because the loser
could never enforce the promise of the winner); see generally Ricks, Mutuality, supra note 5, at 531-
47.
larity. This problem stumped Holmes, who wrote, "[I]t is a case of jump-
ing in-call one binding and both are."'
Interestingly, we have no evidence that any sixteenth century com-
mon lawyer noticed this circularity, which may well mean that none saw
the problem as Holmes did. The simplest way to break the circle is to ad-
mit that even unenforceable promises have value at the time they are made
and constitute consideration for a reciprocal promise. This is the position
now taken generally in American law.45 Some common lawyers appear to
have accepted this position during Elizabeth I's reign.46 Moreover, 47the
mutual promise rule retains vitality today as it did in Elizabethan times.
Common lawyers also asked whether love and affection could be
consideration. After some discussion, this form of consideration was re-
jected. Love was held a sufficient consideration to pass a use in 1565, in
Sharington v. Strotton.48 But its efficacy in assumpsit remained debatable
at this early date. Chief Justice Dyer and Justice Weston agreed in Lord
Grey's Case (Common Pleas 1567) that "what goes in ease and for the
benefit of my friend is my ease and benefit also. 4 9 In 1587, the King's
Bench seems to have come out the same way. 5 But a report of a decision
44 Letter from Holmes to Pollock, 18 Dec. 1910, quoted in James Gordley, THE PHILOSOPHICAL
ORIGINS OF MODERN CONTRACT DOCTRINE 174 (1991).
45 See Ricks, Mutuality, supranote 5, at 510-16.
46 Id. at 503-10, 516-30.
47 See Orange Improvements P'ship v. Cardo, Inc., 984 F. Supp. 85, 91 (D. Conn. 1997)
("[S]ufficient consideration .. .can take the form of mutual promises."); Odom Antennas, Inc. v.
Stevens, 966 S.W.2d 279, 281 (Ark. Ct. App. 1998); Solimini v. Thomas, 688 N.E.2d 356, 361 (I11. Ct.
App. 1997) ("In addition, mutual ...promises provide sufficient legal consideration to support each
other."); MFA Livestock Ass'n, Inc. v. Shrewsbury, 965 S.W.2d 432, 435 (Mo. Ct. App. 1998) ("Mu-
tual promises imposing some legal duty or liability on each promisor are sufficient consideration to
form a valid, enforceable contract."); RESTATEMENT (SECOND) OF CONTRACTS 71 (1981) ("To
constitute consideration, a... return promise must be bargained for.").
48 Plowden 298, 75 Eng. Rep. 454 (K.B. 1565).
49 BAKER & MILSOM, supranote 10, at 492-93.
50 See, e.g., the various reports of Marsh v. Rainsford (K.B. 1587-88). In Marsh, a father sought
to induce his daughter's suitor to marry the daughter, with a promise of 200f., but before the father and
suitor could agree on a day for payment, the suitor secretly married the daughter, after which the father
consented to the marriage and promised to pay 100f. The court allowed the assumpsit action appar-
ently on the ground that the father's love and affection for his daughter were sufficient consideration.
Marsh v. Rainsford, 2 Leon. 111, 74 Eng. Rep. 400 ("Wrey, Justice, Although the consideration be
precedent, yet if it were made at the instance of the other party, the action would have lien. But here
the natural affection of the father to his daughter, is sufficient matter of consideration."); Marsh v.
Kavenford, Cro. Eliz. 59, 78 Eng. Rep. 319, 320 ("Egerton and Foster argued, that this was no consid-
eration; for it is past, and had no reference to any act before: but if the marriage had been at the request
of the defendant, and after the marriage he promised, &c. this had been good. Popham, Daniel, and
Coke contra. For the father's natural affection doth continue, and her advancement is sufficient cause
of the promise."); Marsh v. Rainsford, 3 Dyer 272b, 73 Eng. Rep. 608 (reporting only the facts and the
result); SIMPSON, supra note 7, at Appendix No. 11, p. 633 (a much fuller report of the arguments of
counsel and judges, taken from a Harvard manuscript). In the Harvard manuscript the reporter appears
to have concluded: "And as I gather the better opinion of the justices was that if one marries my
daughter without my request, or without any communication had with me, or against my will, never-
one year later sets the entire King's Bench against it, 5 and a later report
from the Common Pleas in 1600 agrees. 2 The same rule holds true today:
love and affection are not consideration. 3
David Ibbetson has argued that the foregoing categories are paradig-
matic, and that by the early seventeenth century, judges thought of consid-
eration primarily as reciprocity-as exchange, and Baker agrees in part. 4
As far as I can tell, much of the formal doctrine at least by 1615 was actu-
ally intended to focus on an exchange. The common law has largely held
fast to the judgment that a promise given in exchange for some benefit to
the promisor, for some detriment to the promisee, or for some reciprocal
promise should generally be enforceable.15 The exchange rationale has
even survived the attempt of the first Restatement of Contracts to reduce it
to a formality.56 Exchange may not be the only test for actionability of a
theless if after the marriage I say that in consideration of his having married my daughter, I shall give
him so much money, that on this he will have an action, for the natural affection is sufficient." Id. at
636. Leonard, Croke, and the Harvard manuscript reporter all seem to have agreed that natural affec-
tion between father and daughter constituted whole or part of the consideration in this case.
51 See Harford v. Gardiner, 2 Leon. 30, 74 Eng. Rep. 332 (K.B. 1588) ("Curia, Love is not a
consideration, upon which an action can be grounded."). But see Church v. Church, reported in Hunt v.
Wotton, Raymond 259, 260, 83 Eng. Rep. 133 (K.B. 1678) ("Where in assumpsit the plaintiff declared
that whereas the plaintiff had at his own charges buried the defendant's child, the defendant promised
to pay him his charges; and though there was no request laid, yet judgment was given for the
plaintiff .. "), and at Hunt v. Bate, 3 Dyer 272a, 272b n.(b), 73 Eng. Rep. 605, 608.
52 See Bret's Case, Cro. Eliz. 756, 78 Eng. Rep. 987 (C.P. 1600). In Bret's Case the court ex-
plained
that natural affection of itself is not a sufficient consideration to ground an as-
sumpsit; for although it be sufficient to raise a use, yet it is not sufficient to
ground an action, without an express quid pro quo. But it is here good, because
it is not only in consideration of affection, but that her son should afterwards
continue at his table, which is good as well for the money due before, as for
what should afterwards become due.
Id. Simpson concludes from Bret 's Case and Marsh that a past benefit combined with love and affec-
tion was sufficient consideration to ground assumpsit. SIMPSON, supra note 7, at 436-37.
53 See, e.g., Walters v. Calderon, 102 Cal. Rptr. 89, 95 (Cal. Ct. App. 1972) ("[L]ove and
affection ... does not constitute the valuable consideration necessary to support the validity of a con-
tractual promise."); Rose v. Elias, 576 N.Y.S.2d 257, 258 (N.Y. App. Div. 1991) ("[L]ove and affec-
tion provided by plaintiff were insufficient consideration for defendant's promise to purchase an
apartment for her."); Daniel v. Snowdoun Assoc., 513 So. 2d 946, 949 (Miss. 1987) ("Daniel argues
that mere sentiments, such as affection, love, and the like, cannot in themselves furnish adequate
consideration for an enforceable contract, He is, of course, correct."); Rose v. Howard, 670 S.W.2d
142, 146 (Mo. Ct. App. 1984) ("The general rule is that love and affection will not support an unexe-
cuted contractual promise.").
54 See Ibbetson, Consideration,supra note 17, passim & at 106 ("Behind the action of assumpsit
as it had developed in the second half of the sixteenth century, there was essentially a bargain model of
contract."); see also Baker, II SPELMAN'S REPORTS, supra note 8, at 294-95 (in part; Baker also pegs
detrimental reliance as another guiding principle).
55 See authorities cited supra at notes 38-39 & 47; James Neff Kramper Family Farm P'ship v.
Dakota Indus. Dev., Inc., 603 N.W.2d 463, 468 (Neb. Ct. App. 1999) ("Consideration is sufficient to
support a contract if there is any detriment to the promisee or any benefit to the promisor.").
56 The first Restatement tried to reduce consideration to form only; it required no real exchange.
RESTATEMENT OF CONTRACTS 84 (1932) ("Consideration is not insufficient because of the fact...
promise, but it has withstood the test of time.
II. EXPANSION BEYOND SUBSTANTIVE RECIPROCITY: NEW MEANINGS

AND STRUCTURES
The requirement of exchange did not justify enforcement of all

promises that the common law courts thought should be enforced. The
courts enforced promises on other grounds as well. Thus, while at times
the courts employed the exchange mechanism, often they discarded it. This
was understandable. In the mid-sixteenth century, and perhaps even into
the 1580s, no well-developed consideration doctrine existed. Courts were
working out, as if for the first time, their answer to the question "what
promises are actionable?" The doctrines discussed in Part I developed
during this time. But courts in numerous cases in the period 1570-1605
showed great flexibility in dealing with the consideration requirement.
Though exchange proved a useful tool, occasionally it was not enough to
do justice. In the circumstances discussed in this Part II, courts moved
beyond exchange to other categories of justification for enforcement. In
some of these cases, such as those involving detrimental reliance on a
gratuitous promise, the courts employed fiction or became loose in their
analysis of consideration. In others, the courts dropped the consideration
requirement entirely.
A. PromissoryEstoppel Cases in Exchange Clothing
Consideration generally required "fresh cause" on each side-a recip-

rocal bargain. But in practice, the particular formulation of consideration
as "detriment to the plaintiff' was more broadly applied, specifically to
cases in which the promise had induced the detriment but not vice versa,
where the promise was actually gratuitous. Perhaps the delictual origins of
the assumpsit action in trespass caused the courts to focus on the damages
that obtaining it was not the motive or a material cause inducing the promisor to make the promise
.... "); id. 84 cmt. b ("the motive or the cause [of the promise] is immaterial"). Holmes also tried by
the same method. OLIVER WENDELL HOLMES, THE COMMON LAW 215 (Howe ed. 1963) ("Considera-
tion is a form as much as a seal."); id. at 230 ("The root of the whole matter is the relation of reciprocal
conventional inducement, each for the other, between consideration and promise."). This view was
rejected by the Restatement (Second) of Contracts. RESTATEMENT (SECOND) OF CONTRACTS 81 cmt.
b ("Unless both parties know that the purported consideration is mere pretense, it is immaterial that the
promisor's desire for the consideration is incidental to other objectives and even that the other party
knows this to be so."). The Restatement (Second) also reversed the hypothetical used to illustrate that
reasons for promising were irrelevant:
A desires to make a binding promise to give $1000 to his son B. Being advised
that a gratuitous promise is not binding, A offers to buy from B for $1000 a book
worth less than $1. B accepts the offer knowing that the purchase of the book is a
mere pretense. There is no consideration for A's promise to pay $1000.
Id. 71 illus. 5. Clearly some actual inducement is necessary.
to the plaintiff rather than the bargain as the cause of the action.57 The re-
sult was that some sixteenth century cases involving gratuitous promises
could be remedied in assumpsit, much like promises American law now
enforces through the doctrine of promissory estoppel. This line of assump-
sit was occasionally called deceit.
Actual cases of gratuitous promises brought in assumpsit in the late
sixteenth century are difficult to find, however, because their gratuitous
nature is hidden by the assumpsit pleading form. That form required the
plaintiff to allege that the defendant "in consideration of X, undertook Y."
Whether this form logically required that the promise induce the consid-
eration is debatable, but it seems certain that the consideration must induce
the promise. If the promise is gratuitous, then this required element is
lacking. The result is that any detrimentally relied upon gratuitous promise
pleaded in assumpsit is alleged to be induced by whatever detriment the
promisee suffered, even though the promise was not actually induced by
that detriment.58 Thus, pleading consideration as inducement in these cases
was a fiction. Only by inference from the facts stated in the pleadings and
case reports can one determine that the promise was in reality gratuitous.5 9
A relatively recent case exemplifying this difficulty is the well-known
Ricketts v. Scothorn,6 decided in 1898. There, a grandfather, John Rick-
etts, gratuitously gave his granddaughter Katie Scothorn a note for $2,000
so that she would not have to work anymore. In reliance on the note, Ms.
57 Baker reports seeing a similar, "promissory estoppel-like" principal at work in the develop-
ment of assumpsit prior to 1540. Baker, II SPELMAN'S REPORTS, supra note 8, at 295-97.
58 See, e.g., statements of Periam, J, in Sidenham v. Worlington (C.P. 1585), 2 Leon. 224, 225,
74 Eng. Rep. 497, 498 (italics added):
[T]here is a great difference betwixt contracts and this case; for in contracts upon
sale, the consideration, and the promise, and the sale, ought to meet together, for a
contract is derived from con and trahere, which is a drawing together, so as in
contracts every thing which is requisite, ought to concur and meet together, viz.
the consideration of the one side, and the sale or the promise on the other side; but
to maintain an action upon an assumpsit, the same is not requisit, for it is suffi-
cient, if there be a moving cause or consideration precedent; for which cause or
consideration the promise was made; and such is the common practice at this
day ....
Sidenham is also reported at Goldbolt 31, 78 Eng. Rep. 20; Cro. Eliz. 42, 78 Eng. Rep. 306; 3 Dyer
272b n.32, 73 Eng. Rep. 606.
59 Because the pleading form of assumpsit hid the enforcement of gratuitous promises, Simp-
son's general view of consideration as including any acceptable "reason for promising," SIMPSON,
supra note 7, at 406-88, does not describe all of the ways in which consideration is used (or abused?)
in the cases. A gratuitous promise is not given in exchange for the actions of those who rely on it to
their detriment, nor are those actions, which come afterward, a reason or motive for promising. The
reverse is true: the promise is a cause of the action, but that is not what the pleading form required, nor
is it relevant to Professor Simpson's definition. Simpson accordingly describes gratuitous bailment
cases (which to some extent rely on a reliance rationale) and cases of deceit, both discussed infra on
the next few pages, as exceptions to the requirement of a consideration even though the cases them-
selves purport to find a consideration. See SIMPSON, supra note 7, at 408-1l; see also supra notes 66,
72, and text accompanying notes 73-81.
60 77 N.W. 365 (Neb. 1898).
Scothorn quit her job. But Ricketts died before he paid the note, and his
estate refused to pay it. So Ms. Scothorn sued the estate. The court granted
her relief. If Ricketts had been brought in 1589, the plaintiff granddaugher
would have alleged that "in consideration that the plaintiff quit her job, the
defendant undertook to pay her $2,000." That is, in fact, exactly what Ka-
tie Scothom alleged.6 1 The gratuitous nature of the transaction is hidden by
the pleading form, leaving the reader to infer it from the circumstances,
62
which is, in fact, what the court did.
How are we to know that no traditional bargain existed if the action
taken in reliance is set forth in the declaration as the inducement to prom-
ise? It is actually impossible to tell for certain from the legal documents.
But if John Ricketts' gratuitous promise could be pleaded in assumpsit as
an obvious fiction, we can look for similar cases in which the circum-
stances suggest that lawyers made the same move.63
The first example is the gratuitous bailment, such as appears in Smith
v. Edmunds.' There, two merchants were indebted to each other. They
agreed to deliver all their bills and bonds into Edmunds' hands. Edmunds
promised that he would not deliver the bills and bonds until "all actions
were determined" between the merchants. But Edmunds, a gratuitous
bailee, delivered the bills and bonds to one of the merchants before that
time, and the other brought an assumpsit and recovered. The court said the
action was grounded upon "promise and deceit"65 rather than on any con-
sideration. Smith is not the only example of this kind of case, though in
Smith the court may have been more honest about the consideration re-
quirement. In other examples set forth in the margin, the courts held that a
fictional consideration existed.66
61 Id. at 366.
62 Id.
63 That is in fact what the Ricketts court did when it looked for charitable subscription cases
alleged as having been given for consideration. Id. at 366-67. Those cases present another example of
the argument set forth in the text.
64 Reported in argument ofKirkby v.Coles, Cro. Eliz. 137, 78 Eng. Rep. 394 (K.B. 1589).
65 Id.
66 In Gilbert v. Ruddeard, 3 Dyer 272a, 272b n.32, 73 Eng. Rep. 605, 606 n.32 (K.B. 1607)
(cited in BAKER & MILSOM, supra note 10, at 503), Ruddeard had taken money from Gilbert's debtor
to deliver to Gilbert. When Gilbert came to accept the money, Ruddeard "said he was then busy, but if
he would come back on such and such a day [Ruddeard] would pay him." Gilbert went back on the day
named, but Ruddeard didn't pay. Tanfield and Yelverton, JJ, agreed that "here there is [a] considera-
tion . . . for [Gilbert] is to come to the defendant's house to fetch the money." BAKER & MILSOM,
supra note 10, at 504; see 3 Dyer at 272b n.32. It is possible that Ruddeard had some benefit, such as
longer use of Gilbert's debtor's money, as a result of the delay. But the report of Gilbert v. Ruddeard
does not mention that potential benefit. And Gilbert's making another trip to Ruddeard's house seems
to be just the sort of unbargained-for action in reliance that promissory estoppel aims at remedying,
although it may be more appropriate to class Gilbert with Williston's tramp's accepting a conditional,
gratuitous promise. If this latter interpretation is taken, then Gilbert is even further from the bargain
paradigm.
Without the action in reliance, the gratuitous bailee's promise to re-deliver might not have been
A more exceptional kind of case also involved an actual allegation of

deceit. Croke records that in 1572 Chief Justice Catlyn had a record of
Lewes v. Style, a case decided in 1506, read in the King's Bench.67 Croke
said,
[T]he case was, a woman in London had given to the plaintiff flattering words [equivalent]
to a promise of marriage, and by that means he delivered to her money and other things,
and she had caused the plaintiff to retain counsel for her, and to travel about her suits in
Chancery, and afterwards68the woman refused to marry him, and married another, in deceit
and fraud of the plaintiff.
The suitor did not succeed in the suit entirely. Croke wrote that he did not
succeed in establishing damages for breach of a promise to marry because
he "did not declare of any promise of marriage in fact. ' 69 But he did suc-
ceed in his action "for the [defendant's] deceit in not marrying him,"7
which entitled the suitor to damages for the money he had laid out rather
than the money he would have had by the marriage, or in other words,
reliance damages.71 The discussion of Lewes did not focus on whether the
suitor could make out a cause of action in assumpsit, but that appears to
have been assumed. A number of other cases may have been gratuitous in
the same sense.72
enforceable. See Pickas v. Guile, Yelv. 128, 80 Eng. Rep. 86 (1608) (holding, "per totam Curiam" that
custody of the goods was "rather a charge [to the promisor] than a benefit; for the defendant could not
use them; ... for the owner ought to have them of common right"). See also Retchford v. Spurlinge,
BAKER & MILSOM, supra note 10, at 500 (K.B. 1591) (promise to re-deliver money; court's hypothe-
sizing a consideration because it could find none in the declaration); Riches v. Bridges, Cro. Eliz. 883,
78 Eng. Rep. 1108, Yelv. 4, 80 Eng. Rep. 4 (K.B. 1602) (promise to re-deliver grain; otherwise same
as Retchford).
An older example of this line of cases decided before a consideration pleading requirement
existed in assumpsit is mentioned in John Style's Case, SIMPSON, supra note 7, at 630, translated by
Simpson from B.M. Ms. Hargrave 388, f. 215b. The ms. reports:
[I]f I am bound in an obligation in 40 to pay 20 by a certain day and I deliver
the 20 to a stranger and he promises to deliver before the day, and he does not
pay this before the day, so that I have forfeited my obligation, there for the non-
feasance I shall have an action on the case, for he has done wrong [tort] to me.
Id. at 631.
67 That the case took place at this early date ensured that its complaint did not allege a consid-
eration, because a consideration or like requirement does not appear in assumpsit complaints until
1539. See lbbetson, supra note 6.
68 Recorded as a note after King v. Robinson, Cro. Eliz. 79, 78 Eng. Rep. 339 (K.B. 1587), but
discussing the reading of the case aloud in the court, which occurred in "14 Eliz." Baker also discusses
the case at Baker, 1ISPELMAN'S REPORTS, supra note 8, at 277.
69 King, Cro. Eliz. at 80, 78 Eng. Rep. at 340.
70 Id.
71 Baker records that the plaintiff by the verdict was to have the "4 damages" representing the
"money laid out." Baker, 11SPELMAN'S REPORTS, supra note 8, at 277 n. 1.
72 Kirkby v. Coles, Cro. Eliz. 137, 78 Eng. Rep. 394 (K.B. 1589), is perhaps another example,
also akin to a guarantee. Here, Coles promised Kirkby that if Kirkby would deliver certain hogs to
another man, Cooper, with three shillings each, the hogs would be "well fatted, and re-delivered" to
Kirkby. The report says that Kirkby gave "credit" to this promise and delivered the hogs to Cooper.
Cooper did not deliver all the hogs, however, and Wray, CJ, and Gawdy, J, thought Smith v. Edmunds,
Finally, many marriage contracts may well have been gratuitous.

Courts described marriage as a type of consideration.73 Coke74 suggested
that the purpose of marriage money was actually to buy suitors, for whom
marriage was, in reality, a detriment.7 5 But not all jurists were so jaded.
76
Some later suggested that marriage was a benefit to the promisor father
or to the daughter. 7 But several sixteenth century jurists grounded such
promises on affection.78 Some fathers must have wanted to see their
daughters live well, just as Katie Scothorn's grandfather wanted her to live
well. If a father wanted to give a gift of money or goods to his daughter
mentioned supra text accompanying notes 64-66, warranted Kirkby's recovery from Coles. This was
another example of "deceit," a promise given credit which later turned out to be false.
Storer's Case, 3 Dyer 272a, 272b n.32, 74 Eng. Rep. 605, 607 n.32 (c. 1605), is perhaps
another example. There, A and B were negotiating a lease. On the day appointed for A to seal the
lease, A refused to seal because B insisted on some new term concerning repairs. Storer was standing
nearby and promised that if A would seal the deed, Storer himself would make the repairs. Later Storer
was sued for failure to make the repairs. The court appears to have held that A's sealing the lease was a
good consideration "although the sealing of the [lease] was of no consequence to [Storer]."
73 Anon. reported in Hunt v. Bate, 3 Dyer 272b, 73 Eng. Rep. 605 (C.P. 1568); Sydenham v.
Worlington, Godbolt 31, 78 Eng. Rep. 20 (C.P. 1585); Browne v. Garborough, Cro. Eliz. 63, 78 Eng.
Rep. 324 (K.B. 1587).
74 Edward Coke, 1552-1634. Coke was a law student in the mid-1570s, when the consideration
doctrine was first being explicated. He was called to the bar in April, 1578, and practiced successfully
throughout the 1580s. Coke became solicitor-general in 1592, speaker of the House of Commons the
same year, attorney-general in 1593, chief justice of the Common Pleas in 1606, and chief justice of
the King's Bench in 1613. King James removed him from the King's Bench in 1616. In his later years,
Coke again served in parliament. He left his case law Reports in twelve volumes, many of which he
prepared for publication during his lifetime. He also left his Institutes, four treatises of various sorts,
two of which he prepared for publication during his lifetime, and his commentary on Littleton's land
law treatise. A great deal has been written and continues to be written of Coke. E.g., BAKER, supra
note 13, at 177.
75 Freeman v. Freeman, I Rolle 61, 81 Eng. Rep. 327, 2 Bulst. 269, 80 Eng. Rep. 1113 (K.B.
1614). Coke's marriage itself may have reflected this rather pessimistic idea. On Coke's marriage,
Professor Coquillette reports,
As a young man, [Francis] Bacon had proposed to a great heiress, Lady Elizabeth
Hatton. She chose Coke instead, and suffered a deeply unhappy marriage. At one
point, she actually petitioned the Lord Chancellor, traditional protector of the
helpless, to save her daughter from another forced marriage. (Coke was forcing his
daughter to marry the brother of the King's favorite, the Duke of Buckingham.)
The Lord Chancellor to whom Lady Hatton was forced to turn was no less than
Francis Bacon. No soap opera could approach the real passion of these true events.
Daniel R. Coquillette, THE ANGLO-AMERICAN LEGAL HERITAGE 314-15 (1999).
76 E.g., Oliverson v. Wood, 3 Lev. 366, 83 Eng. Rep. 733 (1693) (construing the case of mar-
riage recited in Hunt v. Bate, Dyer 272b, 73 Eng. Rep. at 606 (C.P. 1568), to have found good consid-
eration because the marriage was "for the apparent benefit of the father").
77 E.g., Tribut v. Reynolds, I Keble 240, 83 Eng. Rep. 922 (K.B. 1662) (Twisden, J., agreeing
that in a case of marriage, the wife may have the action in assumpsit because the promise is to her
benefit).
78 Marsh v. Rainsford, 2 Leon. 111, 74 Eng. Rep. 400, 401 (K.B. 1587-88) (Wray, J.:"here the
natural affection of the father to his daughter, is sufficient matter of consideration"); Popham, J, &
Daniel & Coke, in Marsh, Cro. Eliz. 59, 78 Eng. Rep. 319, 320 ("For the father's natural affection doth
continue, and her advancement is sufficient cause of the promise."); Barker v. Halifax, Cro. Eliz. 741,
78 Eng. Rep. 974 (C.P. 1600) (Walmsley, J.: "[Aln assumpsit in consideration that you had married
my daughter, to give unto you 40f. was good; for the affection and consideration always continues.").
upon marriage, he gave it to her husband, because the daughter held no

personal property during coverture. 79 Thus, many marriage cases may well
have involved gratuitous promises of gifts to daughters.8" Crouch v. Givers
(1593),81 for instance, sets forth that Mr. Givers, in consideration of
Crouch's marrying Givers' daughter, promised to give him "unum cu-
biculum." Givers' counsel claimed that this meant the furniture of a cham-
ber. Of course, it is possible that Crouch wanted the furniture himself, but
Crouch probably would have been happy with money. More likely Givers'
daughter wanted furniture from her father's house, and the promise came
about as a gift to the daughter. Thus, marriage was phrased as detriment
only to fit the facts into the pleading requirements of the assumpsit form of
action.
Of course, courts do not now generally consider these gratuitous
promise cases under the rubric of consideration.82 These lines of cases
indicate the danger of relying on a fiction. Calling cases of non-bargained-
for detrimental reliance consideration was false and, therefore, bound to
fail. Fictions require energy to maintain. Once the substance of the law is
admitted and appreciated, or developed further, the historical purpose for
the fiction disappears. This happened to these promissory estoppel-like
cases. When Langdell,83 Holmes, s' Cardozo,8 5 Williston,8 6 and others at-
79 E.g., Hilliard v. Hambridge, Aleyn 36, 82 Eng. Rep. 903 (1648) ("In an action upon the case
against an executor upon a promise of the testator made to the husband and wife, in consideration of
their marriage had at his request to pay 8 If.per annum to the wife during the coverture; after a verdict
for the plaintiff, upon non assumpsit pleaded, it was moved, termino Hil. 22 Car. in arrest ofjudgment,
that it should be brought by the husband only, the promise being made after the coverture, because the
whole benefit thereof is to redound to the husband ...." (emphasis added)); J.H. BAKER, AN
INTRODUCTION TO ENGLISH LEGAL HISTORY 552 (3d ed. 1990) ("Personal property vested in the
husband absolutely ...").
80 See supra note 50, discussion of Marsh v. Rainsford; the declaration in Simmes v. Wescot, I
Leon. 299, 74 Eng. Rep. 273 (K.B. 1589) (bride's father's promise to the marrying couple "to provide
necessaries for the wedding dinner"). In a modem example, Judge Cardozo went to great lengths to
show that the promise of the bride's father to the prospective groom "was intended for the benefit of
the daughter." De Cicco v. Schweizer, 117 N.E. 807, 809 (N.Y. 1917).
81 Cro. Eliz. 307, 78 Eng. Rep. 558 (1593).
82 See Eric Mills Holmes, Restatement of Promissory Estoppel, 32 WILLAMETTE L. REV. 263
(1996). But see Feinberg v. Pfeiffer, 322 S.W.2d 163, 168-69 (Mo. App. 1959) (calling promissory
estoppel a "species of consideration"); Robert Mallery Lumber Corp. v. B. & F. Assocs., Inc., 440
A.2d 579, 583 (Pa. Super. 1982) (quoting Learned Hand in Porter v. Commissioner of Internal Reve-
nue, 60 F.2d 673, 675 (1932)).
83 LANGDELL, supra note 32, at 82-99.
84 Wisconsin & Mich. R.R., Co. v. Powers, 191 U.S. 379, 386 (1903) (per Holmes, J.) ("No
matter what the actual motive may have been, by the express or implied terms of the supposed con-
tract, the promise and the consideration must purport to be the motive each for the other, in whole or at
least in part. It is not enough that the promise induces the detriment or that the detriment induces the
promise, if the other half is wanting."); HOLMES, supra note 56, at 230 (first published in 1881) ("The
root of the whole matter is the relation of reciprocal ... inducement, each for the other, between con-
sideration and promise.").
85 Dougherty v. Salt, 125 N.E. 94, 95 (N.Y. 1919) ("The note was the voluntary and unenforce-
able promise of an executory gift .... [N]othing is consideration that is not regarded as such by both
tempted to distill the exchange doctrine clearly from earlier consideration

precedents, the non-bargained-for reliance cases emerged as the anomaly
that they are." Williston, with the help of others, articulated the promis-
sory estoppel doctrine to explain these cases."t
Incidentally, promissory estoppel's success proves that courts could
apply something like the assumpsit elements again today in place of our
complicated contract doctrines. By happy accident or wise choice, promis-
sory estoppel mimics in its form the action of assumpsit. Promissory es-
toppel first asks whether a promise was made and breached, and second
whether a certain set of circumstances exists that would warrant making
the promise actionable. These circumstances are loosely defined as (1) the
promisor should have reasonably foreseen action or forbearance on the
promise, (2) such action or forbearance occurred, and (3) injustice would
result were the promise not enforced. 9 Generally, injustice occurs because
the relying party incurred either out-of-pocket expenses or other costs that
would remain uncompensated unless the promise were made actionable.
This is an only slightly more particular version of the question asked in all
assumpsit cases: In what circumstances is a promise actionable?
B. Moral Obligation
Cases of moral obligation also were not grounded in exchange.

Whereas in gratuitous promise cases the consideration did not induce the
promise, in moral obligation cases the promise did not induce the consid-
eration. The consideration was past. Courts declared a promise founded on
parties."); De Cicco v. Schweizer, 117 N.E. 807 (N.Y. 1917) (requiring a nominal bargained-for ex-
change, but inferring mutual inducement from the circumstances); Allegheny College v. National
Chautauqua County Bank, 159 N.E. 173, 174 (N.Y. 1927) ("A classic form of statement identifies
consideration with detriment to the promisee sustained by virtue of the promise.... So compendious a
formula is little more than a half truth. There is need of many a supplementary gloss before the outline
can be so filled in as to depict the classic doctrine. The promise and the consideration must purport to
be the motive each for the other, in whole or at least in part. It is not enough that the promise induces
the detriment or that the detriment induces the promise if the other half is wanting." (internal quota-
tions omitted)).
86 1 SAMUEL WILLISTON, THE LAW OF CONTRACTS 99-204, especially 111, 138, 142
(1920).
87 See, e.g., Allegheny College, 159 N.E. at 173; compare Kirksey v. Kirksey, 8 Ala. 131 (1845),
with Halsa v. Halsa, 8 Mo. 303, 307 (1843) (holding, on facts very similar to those in Kirksey, that "the
removal of a young man a considerable distance, who is married and housekeeping, is... a sufficient
consideration to support a conveyance for eighty acres of unimproved land"); see also Warren L.
Shattuck, GratuitousPromises-A New Writ?, 35 MICH. L. REv. 908 (1937).
88 PETER LINZER, A CONTRACTS ANTHOLOGY 338-49 (2d ed. 1995) (including Debate on
Section 88 (Later Section 90) of the Restatement of Contracts, 4 American Law Institute Proceedings
Appendix 85-114 (1926)) (attributing the formulation of the doctrine to Williston and Corbin); Benja-
min F. Boyer, Promissory Estoppel: Requirements and Limitations of the Doctrine, 98 U. PA. L. REV.
459 (1950); see also Charles L. Knapp, Rescuing Reliance: The Perils of Promissory Estoppel, 49
HAST. L.J. 1191, 1192-98; Holmes, Restatement of PromissoryEstoppel,supra note 82, at 275-76.
89 See RESTATEMENT (SECOND) OF CONTRACTS 90 (1981).
consideration not induced by the promise to be non-actionable by 1568, in

the famous Hunt v. Bate case.9 In this case, Hunt stood in for Bate's ser-
vant in debtor's prison so that Bate's work would not go undone. When
Bate learned of this, he promised to hold Hunt harmless should Hunt be
required to pay the servant's debt. But when Hunt was required to pay,
Bate refused to indemnify. The Common Pleas court was unsympathetic.
Chief Justice Dyer reported that Hunt would not be compensated because
he was a mere volunteer: he did it "of his own head." 9 ' Any moral obliga-
tion created by Hunt's volunteering was not sufficient to make Bate's
promise actionable.
Eighteen years later in the sixteenth century, however, the King's
Bench held enforceable a promise founded on a moral obligation or past
consideration. In Edmonds v. Barton (1586),92 an infant requested that the
plaintiff93 guarantee a loan that the infant wanted for his own use. The
infant promised to reimburse the plaintiff if the plaintiff had to pay, and
the plaintiff agreed. Afterward the plaintiff was sued on the infant's debt
and paid it. When the infant reached the age of majority, the plaintiff re-
minded the infant that he had paid the infant's debt. The plaintiff asked
again for reimbursement, and the infant again promised to reimburse. The
plaintiff brought suit on this later promise. 94 Leonard recorded: "And it
was holden by the Court, that although here was no present consideration
upon which the assumpsit could arise; yet the Court was clear, that upon
the whole matter the action did lie, and judgment was given for the plain-
tiff."95
Edmonds is ambiguous as to whether the court decided explicitly to
drop the consideration requirement and enforce the promise or allow a past
90 Hunt v. Bate, Dyer, 272a, 73 Eng. Rep. 605 (C.P. 1568).

91 Dyer at 272b, 73 Eng. Rep. at 606.
92 3 Leon. 164, 74 Eng. Rep. 608 (K.B. 1586); also reportedas Burton's Case, Dyer 272b n.32,
73 Eng. Rep. 606-07 ("F. and an infant are bound to G. jointly and severally for the said infant, who at
his full age promised to F. to save him harmless. G. sued F. and recovered: F. brought assumpsit, and it
lies, because it was a good consideration."). Fuller discusses Edmonds Case in Marsh v. Rainsford,
Harv. MS 16, f393b, SIMPSON, supra note 7, at 633, 634-35: "[J]ust recently this case was ruled: if an
infant requests another to be bound for him, and promises him to save him harmless, and he is bound,
this consideration which is here precedent is only good in conscience [text has 'in consideration'] and
not in law. And when he comes to full age he says to him, "In consideration that you are bound for me,
I will save you harmless" on this assumpsit he will have an action on the case." Solicitor Egerton
conceded this case. Egerton himself argued Edmonds as a precedent in Stone v. Withipole, BAKER &
MILSOM, supra note 10, at 498-99 (translated from YLS MS. G. R29.6, fo. 81); Cro. Eliz. 126, 78 Eng.
Rep. 383; Owen 93, 74 Eng. Rep. 924 (K.B. 1589).
93 Leonard reports that the case was brought against Edmonds, see 3 Leon. at 164, 78 Eng. Rep.
at 608, but Egerton's argument reported in BAKER & MILSOM, supra note 10, at 499, has Edmonds as
plaintiff against Barton, the infant's executor.
94 Leonard has the defendant as the infant itself, see 3 Leon. at 164, 78 Eng. Rep. at 608,
whereas Egerton's reported argument has the action brought against the infant's executor. BAKER &
MILSOM, supra note 10, at 499; Stone, Cro. Eliz. at 127, 78 Eng. Rep. at 384.
95 3 Leon. at 164, 74 Eng. Rep. at 608.
GEO. MASON L. REv. [VOL. 9:1
consideration. In either case, the result is remarkable, because by this late

date the requirement of a consideration and the rule against past consid-
eration were firmly entrenched.96 But the rule in Edmonds also made its
mark in the sixteenth century. 97 Egerton rested it on the infant's moral ob-
ligation, stating that "in conscience he ought to pay. ' 98 Previous commen-
tators have written that the moral obligation doctrine arose in the late sev-
enteenth century, in Ball v. Hesketh (1696), 99 but this is not so. Elizabethan
judges were the primary innovators when it came to the consideration re-
quirement.
Since the sixteenth century, moral obligation cases have expanded
beyond Edmonds v. Barton. The development is well rehearsed in other
sources. 00 Chief Justice Holt followed Edmonds in Ball v. Hesketh
(1697),1 1 and expanded Edmonds in Heyling v. Hastings (1699)"2 to al-
low enforcement of promises to pay a prior debt after the statute of limita-
96 See supra text accompanying notes 90-91 (discussing Hunt v. Bate).

97 See Fuller's discussion of Edmonds in Marsh v. Rainsford, Harv. MS 16, f 393b, SIMPSON,
supra note 7, at 633, 634-35; Egerton's discussion in Stone v. Withipole, BAKER & MILSOM, supra
note 10, at 498-99 (translated from YLS MS. G. R29.6, fo. 81); Cro. Eliz. 126, 78 Eng. Rep. 383;
Owen 93, 74 Eng. Rep. 924 (K.B. 1589). A possibly related case is Pyers v. Turner, Cro. Eliz. 283, 78
Eng. Rep. 537 (K.B. & Exch. Ch. 1592), in which the defendant's son, Walter, was bound by an obli-
gation to the plaintiff and failed to pay the money by the day it was due. Walter asked his father to pay
the obligation, and the father, in consideration that the plaintiff would forbear further suit until a day
later, promised to pay. The plaintiff named a day, but Walter's father failed to pay, so the plaintiff sued
the father on his promise. After the plaintiff won at trial, the father moved there was no consideration
because the father was not the debtor. Gawdy, J, said that "laying all the matter together,... it is good
....And to this the Court agreed, and the plaintiff had judgment." The Exchequer Chamber afterwards
reversed, "for it was no consideration." See also Moming v. Knop, Cro. Eliz. 700, 78 Eng. Rep. 935
(K.B. 1599) (raising the same issue as Edmonds v. Barton but adjourning because the only two justices
present disagreed).
98 Cro. Eliz. at 127, 78 Eng. Rep. at 384 (Egerton, Solicitor General).
99 Comberbach 381, 90 Eng. Rep. 541 (1696); see, e.g., SIMPSON, supra note 7, at 544; KEVIN
M. TEEVEN, PROMISES ON PRIOR OBLIGATIONS AT COMMON LAW 75-77 (1998). Simpson also argues,
however, that consideration did not mean exchange but included any "cause ... requiring a mutual
recompense." See SIMPSON, supra note 7, at 322-23. A moral obligation qualified as consideration
under this broad definition. Langdell read Edmonds as a moral obligation case. LANGDELL, supra note
32, at 91.
100 See, e.g., TEEVEN, supra note 99, at 73-123 (including discussion of Justice Mansfield's failed
attempt during the eighteenth century greatly to expand the moral obligation doctrine); Watson, supra
note 1,at 1749.
101 Comberbach 381, 90 Eng. Rep. 541 (K.B. 1696). Professor Teeven notes that Edmonds's facts
differ from those of Ball in that the plaintiff in Edmonds was somewhat of a guarantor, whereas the
plaintiff in Ball was the infant's creditor on a loan, so that Holt may not have been following Edmonds,
strictly. Personal correspondence dated March 10, 2000 (in author's posession). Holt is not innovating
far beyond it in Ball, however, if Edmonds is to be read that narrowly. The brief report of Ball v. Hes-
keth does not mention Edmonds. I have no direct proof that Holt was following Edmonds there. I think
it most likely, however: Edmonds is cited in prominent reports of Stone v. Withypole that Holt and
other lawyers must have read. See supra note 92. By Holt's time, Croke's and Owen's reports of Stone
had long been in print. L.W. ABBOTT, LAW REPORTING INENGLAND 1485-1595, 308-09 (1973, Gaunt
Reprint 1996). Leonard's report itself was also long in print. Id. at 310-11.
102 1 Ld. Raym. 389,421,91 Eng. Rep. 1157, 1179 (K.B. 1699).
tions had run on that debt. Moral obligation was later held a sufficient con-
sideration to support enforcement of a promise to pay a debt previously
discharged in bankruptcy. 10 3 Further development of the moral obligation
doctrine beyond these rather narrow circumstances was curtailed in some
jurisdictions," 04 but continues to develop in others.0 5 The Restatement
(Second) of Contracts approved a form of the doctrine in 1981 that has
enjoyed favorable reception in some states.'0 6 We owe something of these
developments to Elizabethan judges.
C. The Early Precursorof Quasi-Contractand Unjust Enrichment
In developing law that would later evolve into our twentieth century
quasi-contract and unjust enrichment rules, Elizabethan judges dropped the
consideration requirement explicitly, though they waffled somewhat at
first. The most striking example of innovation in grounding promise en-
forcement other than on consideration is the case of prior debt. By debt, I
mean the occurrence of facts that gave the plaintiff an action of debt under
103 See, e.g., Trueman v. Fenton, 2 Cowp. 543, 98 Eng. Rep. 1232 (K.B. 1777); accord II U.S.C.
524(c) ("An agreement between a holder of a claim and the debtor, the consideration for which, in
whole or in part, is based on a debt that is dischargeable in a case under this title is enforceable only to
the extent enforceable under applicable nonbankruptcy law ... [and] only if [the listed conditions are
met].").
104 See Mills v. Wyman, 3 Pick. [20 Mass.] 207 (1825); Manwill v. Oyler, 361 P.2d 177 (Utah
1961).
105 See, e.g., CAL. CIVIL CODE 1606 (West 2000) ("An existing legal obligation resting upon
the promisor, or a moral obligation originating in some benefit conferred upon the promisor, or preju-
dice suffered by the promisee, is also a good consideration for a promise, to an extent corresponding
with the extent of the obligation, but no further or otherwise."); OKLA. STAT. ANN. tit. 15, 107
(1999) ("An existing legal obligation resting upon the promisor, or a moral obligation originating in
some benefit conferred upon the promisor, or prejudice suffered by the promisee, is also a good con-
sideration for a promise, to an extent corresponding with the extent of the obligation, but no further or
otherwise."); Slayton v. Slayton, 315 So. 2d 588 (Ala. Civ. App. 1975); Webb v. McGowin, 168 So.
196 (Ala. 1935); Realty Assocs. of Sedona v. Valley Nat'l Bank of Ariz., 738 P.2d 1121, 1124 (Ariz.
Ct. App. 1987) ("Arizona caselaw is consistent with Restatement (Second) of Contracts 86 and those
jurisdictions permitting recovery by a broker upon acknowledgment of receipt of prior services.");
Knight v. Board of Admin. of Pub. Employees' Retirement Sys., 273 Cal. Rptr. 120, 145 n.10 (Cal. Ct.
App. 1990) (dicta citing to older California precedent); McMurry v. Magnusson, 849 S.W.2d 619, 623
n.1 (Mo. Ct. App. 1993) (citing favorably RESTATEMENT (SECOND) OF CONTRACTS 86); Mamon v.
Vaughan Motor Co., Inc., 194 P.2d 992, 1009-10 (Or. 1948) (en banc). For recent commentary dis-
cussing the development of the moral obligation doctrine in America, see TEEVEN, supra note 99, at
73-123 (1998); Watson, supra note 1, at 1749; Charles M. Thatcher, Complimentary Promises for
Benefits Received: An Illustrated Supplement to Restatement (Second) of Contracts Section 86, 45 S.
D. L. REV. 241 (2000); Steve Thel and Edward Yorio, The PromissoryBasis of Past Consideration,78
VA. L. REV. 1045 (1992).
106 RESTATEMENT (SECOND) OF CONTRACTS 86 (1981); see, e.g., Realty Assocs. of Sedona,
738 P.2d at 1124 ("Arizona caselaw is consistent with Restatement (Second) of Contracts 86 and
those jurisdictions permitting recovery by a broker upon acknowledgment of receipt of prior serv-
ices."); McMurry v. Magnusson, 849 S.W.2d at 623 n.1 (citing favorably RESTATEMENT (SECOND) OF
CONTRACTS 86); Gregory E. Maggs, Ipse Dixit: The Restatement (Second) of Contracts and the
Modern Development of Contract Law, 66 GEO. WASH. L. REV. 508, 519-20 (1998).
sixteenth century law, other than the fact of the defendant's signing a
sealed instrument. Some such informal indebtedness was often said to
arise "by contract." Though the use of the term contract throughout me-
dieval and Renaissance times was uncertain, contract most often meant
entering into one of a certain set of informal transactions that would create
a debt.'0 7 Glanvill listed these transactions as "a loan for consumption, or
sale, or loan for use, or letting, or deposit or any other just cause of indebt-
edness."' 08 The categories remained somewhat open-ended, 0 9 but primar-
ily these kinds of transactions were contracts in the sixteenth century Eng-
lish mind. In this Part, the term contract is used solely to refer to these
kinds of transactions. Additionally, the term debt refers to liability founded
on a contract.
Some sixteenth century opinions appear to argue that consideration
exists in cases of prior debt."' Lawyers who understand consideration to
mean a present exchange view the prior debt cases as absurd. A past debt
is not a "fresh cause" for the defendant's promise."' 1 Past acts of the plain-
tiff which the defendant had neither bargained for nor requested would not
generally serve as consideration because the promise did not induce
them. 1 2 It seems odd that the defendant's prior liability, also not induced
by the promise, would serve as consideration, because the defendant also
had a prior duty to pay the debt. Prior debt consideration is thus an excep-
107 See, e.g., SIMPSON, supra note 7, at 185-96.

108 THE TREATISE ON THE LAWS AND CUSTOMS OF THE REALM OF ENGLAND COMMONLY
CALLED GLANVILL 117 (Hall, ed. & trans. 1993) (probably first written c. 1187-89).
109 SIMPSON, supra note 7, at 186-90.
110 E.g., Anon., Godbolt 13, 78 Eng. Rep. 9 (K.B. 1582) (dicta: "[B]ut if the consideration were
quod cum indebitatus,&c. the same had been a good consideration without any more; for that implies
a consideration in itself."); Gill v. Harewood, 1 Leon. 61, 74 Eng. Rep. 57 (C.P. 1587) ("[T]he debt in
it self is a sufficient consideration."), reported by Gouldsborough as Whorwood v. Gybbons, Gould.
48, 75 Eng. Rep. 986 (holding that declaring a precedent debt dispenses with the requirement of alleg-
ing a separate consideration); Manwood v. Burston, 2 Leon. 203, 204, 74 Eng. Rep. 479, 480 (Exch.
Ch. 1587) ("There are three manner of considerations upon which an assumpsit may be grounded: 1.A
debt precedent ....); Anon., I Leon. 157, 74 Eng. Rep. 145 (C.P. 1589); Hodge v. Vavisour, 3 Buls.
222, 81 Eng. Rep. 188 (K.B. 1616) ("[H]ere the defendant is clogged with a debt continually, and
therefore this is here a good consideration to raise a promise."); Vale v. Egles, Cro. Jac. 69, 79 Eng.
Rep. 59, Yelv. 70, 80 Eng. Rep. 49 (1605) (Croke: "[F]or the debt itself, without other special cause, is
sufficient to ground the action.").
111 See supra note 25 & accompanying text, citing arguments of Fletewood and Wray in Shar-
ington v. Strotton, Plowden 298, 75 Eng. Rep. 454 (K.B. 1565) (cited in BAKER & MILSOM, supra note
10, at 488) (analogizing consideration for an agreement to be "an act done and a fresh cause arising
from each side").
112 Hunt v. Bate, Dyer 272a, 73 Eng. Rep. 605 (C.P. 1568); Dogget v. Dowell, Owen 144, 74
Eng. Rep. 962, Cro. Eliz. 885, 78 Eng. Rep. 1110, Moore 643, 72 Eng. Rep. 812 (C.P. 1602) (Owen:
"[H]ere is no cause of action, for the consideration is precedent and not mutuall ....")(Croke: "[T]he
consideration was past and executed, and the consideration and the promise ought to go together .. ")
(Moore: "Et adjudge que le pl' srdit barre,quia le consideracon de chose passe n 'est sufficient pur
1"assumpsit.").
tion to the principle of fresh cause or recompense."' Courts, however,

recognized this anomaly. Consequently, a common course of action in
prior debt cases was to drop the consideration requirement entirely, as the
following discussion shows.
1. Prior Debt-Marlerv. Wilmer to Gill v. Harewood
Some very early examples of assumpsit cases were brought to recover

debts on prior contracts." 4 This kind of assumpsit later developed into a
particular form of action called indebitatus assumpsit. Such counts were
brought from 1530 onward." 5 Throughout the 1530s, the King's Bench
held such counts to be actionable, even though they did not require consid-
eration to be alleged. Ibbetson claims that Marler v. Wilner (1539)
changed that general practice 1 6 by becoming the first case to require that
something like consideration be alleged in assumpsit cases." 7
In 1523, Wilmer bought some cloth from Marler for 4 13s. 8d. Mar-
ler delivered, but Wilmer did not pay. Marler died in 1527, leaving his son
William Marler as executor. In July, 1527, Wilmer promised the younger
Marler that he would pay the debt within one month, but again failed to
pay. Marler let the matter drop for ten years, then sued in assumpsit in-
stead of in debt, relying on the promise made to him personally in 1527.
Judgment was entered against Wilmer, who then brought a writ of error in
the King's Bench. Wilmer's attorney, Richard Heywood, assigned as one
cause of error that no "causa" was shown for the defendant's promise: "in
the count it does not appear for what cause the aforesaid [Wilmer] had
made the aforesaid promise, viz., neither for a few pence paid beforehand
nor for the receipt of a part of the aforesaid goods. And so ex nudo pacto
11 8
non orituraccio."
Although no resolution of the case appears, allegations of promises
made by defendants "for" a plaintiffs reciprocal performance soon began
to appear in assumpsit declarations." 9 Incidentally, many of these recipro-
cal performances were not called consideration in the pleadings, but quid
pro quo or cause. This language continued to appear in assumpsit plead-
113 lbbetson refers to prior debt consideration as an anomaly. Ibbetson, Consideration,supra note
17, at 69-72.
114 I am using contract in the special sense noted, as the cause of indebtedness See supra text
accompanying notes 107-13.
115 Ibbetson records a pleading in 1530 as the earliest instance and notes further cases throughout
the 1530s and 40s. Ibbetson, supra note 6, at 142. An example is Pykerying v. Thurgoode, I
SPELMAN'S REPORTS, supra note 8, at 4 (K.B. 1532).
116 Ibbetson, supra note 6, at 142. The facts of Wilmer recited here come from lbbetson's account
at 144.
117 Id. at 142; see also BAKER, supra note 13, at 371-74.
118 Ibbetson, supra note 6, at 152.
119 BAKER, supra note 13, at 372-73.
ings throughout the 1560s,"' suggesting that lawyers at the time saw little
difference between the terms. Eventually, consideration won out as the
term of art, but perhaps, as Ibbetson suggests and Baker agrees, Marler
began the tradition of alleging a recompense in assumpsit cases. 2 ' Still,
the pleading form used in Marler, in which no consideration at all was
alleged, was also used in later cases.' 22 Failing to allege consideration in
that form, however, was acceptable, as cases such as Gill v. Harewood
123
(C.P. 1587) prove.
Gill and Harewood found in an accounting of their prior dealings that
Harewood was indebted to Gill. In consideration that Gill forbear suit on
the debt "perparvum tempus" ("for a little time"), Harewood promised to
pay it. Gill sued on this promise, and won at trial. Harewood then moved
in arrest of judgment that per parvum tempus may be "punctum, temporus"
("in an instant"), and thus, no forbearance at all. This objection would
have struck a chord with some in the courts, particularly Justice Gawdy,
who said, "[P]arvum tempus may be three or four hours, or days, which is
not consideration."' 24 But Gouldsborough reports:
And the opinion of the whole Court (absente Anderson) was, that insomuch as the proviso
was made by him by whom the debt was due, that it is a good consideration, and that it is a
common course upon the case against him by whom the debt is due, to declare without any
25
words in consideration.1
Leonard gives a similar rationale for the decision: "[F]or the debt in itself
'2 6
is a sufficient consideration.' 1
120 Ibbetson, supra note 6, at 153-54 & 153 n.72; IBBETSON, OBLIGATIONS, supra note 17, at 142.
121 See BAKER, supra note 13, at 372-73.
122 Ibbetson, supra note 6, at 155 & 155 n.80 & 151 n.59 (listing examples from 1544). In pub-
lished reports, see Anon., Godbolt 13, 78 Eng. Rep. 9 (K.B. 1582). Other cases mention the pleading
form: Manwood v. Burston, 2 Leon. 203, 204, 74 Eng. Rep. 479, 480 (Exch. Ch. 1587) ("There are
three manner of considerations upon which an assumpsit may be grounded: 1. A debt precedent .... ");
Hodge v. Vavisour, 3 Buls. 222, 81 Eng. Rep. 188, (K.B. 1616) (cited in BAKER & MILSOM, supra
note 10, at 504) ("[H]ere the defendant is clogged with a debt continually, and therefore this is here a
good consideration to raise a promise.").
123 Goulds. 48, 75 Eng. Rep. 986, 1 Leon. 61, 74 Eng. Rep. 57 (C.P. 1587). Gouldsborough has
Whorwood as the plaintiff and Gybbons as the defendant. The case is also reported in SIMPSON, supra
note 7, at 638, as Harwold's Case, translated from Harv. MS. 16, f. 254a.
124 Goulds. at 48, 75 Eng. Rep. at 986; see also Lutwich v. Hussey, Cro. Eliz. 19, 78 Eng. Rep.
286 (C.P.1583) ("And it was alledged in arrest ofjudgment, that there was no consideration for the
promise, for it is not said for how long he should forbear; for if he did forbear for a quarter of an hour
or less, he hath performed the word, quod paullulum cessaret; and although the plaintiff doth alledge
he did forbear for half-a-year, this will not help the case. And of that opinion were the justices; and
commanded, if no other matter be shewn before the end of the term, quod nihil capiatper breve.");
Sackford v. Philips, Moore 689, 72 Eng. Rep. 842, Cro. Eliz. 455, 78 Eng. Rep. 694, Owen 109, 110,
74 Eng. Rep. 936 (Ex. Ch. 1595) (Owen: "Peryam. The consideration upon which an assumpsit is
grounded ought to be of value, but of what value is it, where the forbearance is but for half an
houre?").
125 Goulds. at 48, 75 Eng. Rep. at 968 (emphasis added).
126 1 Leon. at 61, 74 Eng. Rep. at 57. For other decisions approving this manner of pleading, see
It is hard to say how big a hole the Marler/Gillpleading form cut out
of the consideration doctrine without counting the pleadings themselves,
something I have not done. Nevertheless, if consideration was the gate-
keeper, one must ask why is it that courts were willing to dispense with it
in cases of prior debt on a contract?
The answer is most likely in part that in such cases the defendant was
liable already, usually because of a prior exchange. It was possible to plead
some indebitatus cases in another form which showed an exchange. Ibbet-
son gives the following example:
Whereas the defendant .. in consideration that the plaintiff at the special instance and re-
quest of the defendant had sold and delivered to the said plaintiff to the use of the plaintiff
three cows at a price of 13. 13s. 8d .... assumed and then and there faithfully promised
12 7
that he the said defendant would well and truly pay to the said plaintiff 13. 13s. 8d.
This form alleges consideration, but amounts to the same thing as the
mere allegation of a debt. The sale of a cow was a contract which would
raise a debt, so this form was substantively the same as the more simple
indebitatus clause. In cases such as these, an exchange had occurred, so
the liability in assumpsit might be said to be founded on an exchange just
as liability in debt would have been.
But the existence of this alternate form did not solve the problem en-
tirely because debt and assumpsit differed in theory. In debt, the exchange
concept took the form of reciprocal grants of property. Thus, debt on a
contract was proprietary, the theory being that once the defendant became
indebted she held the plaintiff's property and, therefore, must deliver it to
the plaintiff. The property passed at the time that the transaction charac-
terized as a contract took place. Assumpsit, on the other hand, did not en-
force property rights but awarded the plaintiff damages for harm done by a
breach of promise. The assumpsit theory did not involve reciprocal grants.
Rather, it involved promises for property and even promises for promises.
That is one reason why the Common Pleas in the sixteenth century re-
quired that a subsequent, additional promise be pleaded and proved in all
indebitatus assumpsit cases. 12 Switching liability from debt to assumpsit,
without requiring the subsequent promise, changed the entire theory of the
supra notes I l0 & 122.

127 Ibbetson, supra note 23, at 296, quoting from Haughton v. Wood, KB 27/1304m 196 (1588)
(Ibbetson's translation); see also Anonymous, I Leon. 157, 74 Eng. Rep. 145 (1589); Harewood v.
Hamond, Noy 59, 74 Eng. Rep. 1027 (C.P. 1597) (although the Common Pleas refused to grant recov-
ery here because they had retrenched into the position that no assumpsit could be had in place of debt,
see generally lbbetson, supra note 23, at 299-301); Hodge v. Vavisour, 3 Buls. 222, 81 Eng. Rep. 188,
BAKER & MILSOM supra note 10, at 504 (K.B. 1616) (both forms are alleged here); BAKER, supra note
13, at 410.
128 See II DYER'S REPORTS, supra note 26, at 420 (report from 1559 so indicating); Ibbetson,
supra note 23, at 295.
debt action and threatened to render debt sur contract itself obsolete.'29
Once the plaintiff in a debt case obtained a right to the property re-
coverable in debt, the debt itself-the right to property-was sometimes
said to be "a consideration in law" in assumpsit cases. The debt was a
situation requiring recompense, even if not induced by a promise. Hence,
the courts rationalized that "[t]he debt in itself is a sufficient considera-
tion.' "3 Until the debt was remedied by transfer of the plaintiff's property,
the debt continued and was referred to as "continuing" consideration.' 3'
This is also why sixteenth century courts refused to allow indebitatus de-
fendants to deny that the plaintiff had requested the defendant to pay, and
only required a general allegation licet sepius requisitus ("though often
requested") in the plaintiffs pleading. A specific allegation of request was
necessary when liability was founded on the promise rather than the debt,
for then the request was a condition of the defendant's duty. 132 When prior
debt was the consideration, the defendant already owed a duty,' 33 and thus
no other request or consideration was necessary.
Notwithstanding the "continuing consideration" rhetoric, though, as
long as assumpsit was based on a promise other than that involved in the
kind of reciprocal grant of property that would create a debt, debt re-
mained a past or prior obligation. This prior obligation was objected to in
the 1596 case of Turges v. Becher, where counsel noted that "being in debt
is not a consideration ... without any forbearance or abatement of part of
the sum . . . , for he who makes the promise has no benefit by it."' 34 The
129 See infra Part II.C.2; Ibbetson, supra note 23, at 296-99; IBBETSON, OBLIGATIONS, supra note
17, at 138.
130 Gill v. Harewood, I Leon. 61, 74 Eng. Rep. 57 (C.P. 1587).
131 Hodge v. Vavisour, 3 Buls. 222, 81 Eng. Rep. 188 (K.B. 1616) ("[H]ere the defendant is
clogged with a debt continually, and therefore this is here a good consideration to raise a promise.").
132 E.g., Banks v. Thwaits, 3 Leon. 73, 74 Eng. Rep. 549 (K.B. 1579); Morris v. Kirke, Cro. Eliz.
73, 78 Eng. Rep. 334 (1587); Osbaston v. Garton, Cro. Eliz. 91, 78 Eng. Rep. 350 (1588); Hill v.
Wade, Cro. Jac. 523, 79 Eng. Rep. 447 (1619) (requiring a specific demand when the defendant had
promised to pay not his own debt but the debt of another); accord Anonymous, Godbolt 49, 78 Eng.
Rep. 30 (K.B. 1586) (debt case holding that the licet sepius requisites was not traversable); Buckley v.
Rice Thomas, I Plowden 118, 128, 75 Eng. Rep. 182, 198 (C.P. 1555) ("But in debt the reason why
the licet sepius requisitus is not traversable, is not because it is not precisely alledged but because it is
not the effect nor substance of the matter, nor is it traversable although it were precisely alledged by
other words of precise allegation, for there the defendant ought to answer to the debet, and not to the
request, which is alledged only in order to have recompence for the damages .... ").
133 E.g., Hughes v. Robotham, Popham 30, 31, 79 Eng. Rep. 1150, 1151 (K.B. 1593) (per
Gawdy, J: "And therefore in an action upon the case upon an assumpsit, it sufficeth to say, that
whereas the defendant was indebted to the plaintiff in divers sums of money amounting in all to an
I 00E. the defendant assumed to pay the I 00. at such a day, without saying, how, or in what manner
these debts accrued, or when, because the action is not meerly founded upon the debt but upon the
promise, and the debts are but inducements to it: but if it were to recover the debts themselves in an
action of debt, there ought to be made a certainty thereof, to wit, when, and how it comes."); Estrigge
v. Owles, 3 Leon. 200, 74 Eng. Rep. 632 (K.B. 1588); see also Ibbetson, supra note 6, at 157-58;
IBBETSON, OBLIGATIONS, supra note 17, at 132-33.
134 IBBETSON, OBLIGATIONS supra note 17, at 94 & 94 n.152, quoting C.U.L. MS Gg 6.29 f.133;
20001 THE SOPHISTICATED DOCTRINE OF CONSIDERATION
Courts' granting of liability in indebitatus assumpsit despite that objection

is proof that the consideration doctrine did not control liability for prom-
ises. In fact, as noted, courts established indebitatus precedents very early
(in the 1530s)-before they began using the consideration doctrine to limit
the reach of assumpsit. 135 Only later, after consideration became a doctrine
and some notion of reciprocity became dominant, did the courts attempt to
rationalize indebitatus cases on consideration grounds. It was a bad fit at
best, actually a fiction, but by then the practice was settled.
2. From Slade's Case to the Twenty-First Century
The law never retreated from this fictional consideration, though now
the fiction has been forgotten. The Common Pleas eventually tried unsuc-
cessfully to stop the progress of assumpsit in cases of prior debt of the
promisor. This dispute between the Common Pleas and King's Bench, as
well as its resolution, is fully explained by Ibbetson'36 and Baker.1 37 At
least as early as 1559, the King's Bench began to allow assumpsit when-
ever debt on a contract was available.' 38 The plaintiff before the King's
Bench had to show nothing more than a prior debt in order to recover in
assumpsit. This lowering of the proof requirements in assumpsit was ac-
complished by a legal fiction. Assumpsit for a debt was technically
founded on a promise to pay the debt, not the debt itself, which meant that
the subsequent promise had to be pleaded. But the King's Bench did not
require proof of the subsequent promise, only the pleading of it; they
would not allow the defendant to deny the allegation of a promise or dis-
prove it at trial. 139 The King's Bench believed that the making of the con-
see also the report of Turgys at BAKER & MILSOM, supra note 10, at 418-19. lbbetson also notes
Edmund Plowden's making the same objection in 1567. IBBETSON, OBLIGATIONS, supra note 17, at
145 (citing Anon (c. 1567) BL MS Harv. 15 f.40).
135 See BAKER, supra note 13, at 417-18. Baker reports an indebitatuscount alleged in 1540.
Baker, II SPELMAN'S REPORTS, supra note 8, at 290 n.5 (Robynson v. Wynter, KB 27/1116, m. 36v
(1540)). They were brought earlier in Orwell v. Mortoft, BAKER & MILSOM, supra note 10, at 406
(C.P. 1505), and allowed in Pykerying v. Thurgoode, I SPELMAN'S REPORTS, supra note 8, at 4 (K.B.
1532), and Holygrave v. Knyghtysbrygge, I SPELMAN'S REPORTS, supra note 8, at 7 (K.B. 1535). Dyer
noted in Autumn 1559 that in assumpsit upon a bargain a promise must be "put in evidence" and not
presumed, but he noted that "the court of King's Bench takes a contrary view." II DYER'S REPORTS,
supra note 26, at 420. This is the controversy that later generated Slade's Case. By 1559 an assumpsit
based on a prior debt is thus common enough to have generated a well-known practice in both the
King's Bench and Common Pleas. At this time, little to no evidence exists that the courts were using
the consideration clause to limit the reach of assumpsit actions.
136 lbbetson, Sixteenth Century Contract Law, supranote 23, at 295.
137 BAKER, supra note 13, at 393.
138 This practice possibly began much earlier. See, e.g., Pykerying v. Thurgoode, II SPELMAN'S
REPORTS, supra note 8, at 5 (K.B. 1532).
139 See II DYER'S REPORTS, supra note 26, at 420 (1559): "[l]t was agreed by the [Common
Pleas] ...that there should be given and put in evidence an express promise and undertaking to pay
the money for the bargain at a later day, and not a promise by implication or a promise presumed from
tract implied enough of a promise. 140 The Common Pleas disagreed, and
continued to require proof of a subsequent, separate promise. 4 ' The
Common Pleas believed that without this subsequent promise, assumpsit
would overlap debt and render debt sur contract, an older common law
42
form with obvious pedigree, obsolete.
The Common Pleas for many years could do nothing to stop the
King's Bench. Appeal from the King's Bench was only available by writ
of error to Parliament, an expensive procedure, the result of which was
subject to greater political uncertainty. But that changed in 1585, when by
statute the Common Pleas and Exchequer judges together, sitting as the
Exchequer Chamber, gained a writ of error jurisdiction over the King's
Bench. 43 The Common Pleas judges were a majority in the new Excheq-
uer Chamber, so the statute gave them the power to change the King's
Bench practice.
Another difficulty beset the Common Pleas, however. The King's
Bench rule in practice was not reversible error because it never showed up
on the record. When the jury found for the plaintiff, the plaintiff's declara-
tion, which included an alleged subsequent promise, became the trial
court's finding. The Common Pleas had to find a way to change the con-
duct of King's Bench judges at trial. This was accomplished from 1596
forward by refusing to allow judgment at all in assumpsit cases in which a
debt action was available.'" This refusal was a retreat from the Common
Pleas' former position of allowing assumpsit if a subsequent promise oc-
curred,'4 5 but it gave defendants in the King's Bench a ground for error in
the Exchequer Chamber, which then began reversing on this ground
46
King's Bench judgments that granted assumpsit in lieu of debt. 1
The Exchequer Chamber continued to reverse assumpsit judgments in
lieu of debt on an informal contract'47 until nearly all the judges on all
benches around 1605 came to hold the proposition reported in Slade's
Case'48 that "every contract executory in itself imports an assumpsit" or
the bargain. But the court of King's Bench takes a contrary view." Id.
140 BAKER, supra note 13, at 417,422.
141 Id. at 417; Edwards v. Burre, Dal. 104, 123 Eng. Rep. 310 (C.P. 1573).
142 See lbbetson, Sixteenth Century ContractLaw, supra note 23, at 309-10; BAKER, supra note
13, at 402, (translation of the argument of Francis Bacon for the Common Pleas' position), & 423. The
Common Pleas also argued that obsolescence of debt would deprive debtors of the wager of law de-
fense. See id. at 424-26.
143 Stat. 27 Eliz. c.8, amended by Stat. 31 Eliz. c.1 (1585).
144 Ibbetson, Sixteenth Century Contract Law, supra note 23, at 301-02.
145 See supra discussion of Gill v. Harewood, Goulds. 48, 75 Eng. Rep. 986, 1 Leon. 61, 74 Eng.
Rep. 57 (C.P. 1587), at notes 123-26 & accompanying text.
146 E.g., Turges v. Beacher, Moore 694, 72 Eng. Rep. 845 (Exch. Ch. 1596); Paramour v. Payne,
Moore 703, 72 Eng. Rep. 852 (K.B. & Exch. Ch.1596); Ibbetson, supra note 23, at 302 n.34.
147 See, e.g., Symcock v. Payne, Cro. Eliz. 786, 78 Eng. Rep. 1016 (K.B. and Ex. Ch. 1600).
148 4 Coke 91, 76 Eng. Rep. 1072 (1602). For more general background on this controversial
case, see lbbetson, supra note 23, at 295, and BAKER, supra note 13, at 393. Some Common Pleas
promise. 149 During the dispute between the King's Bench and Common
Pleas, the Common Pleas and Exchequer Chamber sometimes said that
assumpsit could not be maintained in lieu of debt "because the considera-
tion was not sufficient."150 These refreshingly honest holdings are an aber-
ration caused by the dispute in the courts.
Slade's Case and changes in judicial attitudes affirmed that debt cases
could be brought in assumpsit. However, defendants continued to object to
a mere allegation of prior indebtedness because they were unsure how to
defend such cases, not knowing from the plaintiff's pleading how the prior
debt arose. Thus, in Woodford v. Deacon (1608),5' Croke reported that
"error [was] assigned, because the plaintiff in an assumpsit declares, that
the defendant, being indebted to him, assumed to pay, &c. and doth not
shew for what cause the debt grew .. Not all causes of debt would
".."152
warrant an assumpsit, 153 and the court wanted to know whether the debt
alleged would do so. Merely alleging that the defendant promised "in con-
sideration of' a prior debt did not cure this defect.154 Only by laying out
the cause of the debt-namely, the quid pro quo and resulting contract-
could the court be sure.
So thereafter, indebitatus counts both gave details of the prior debt
and named the consideration, a prior debt. The defendant "was indebted
for goods sold and delivered at his request, and being so indebted. . . , in
consideration thereof, undertook 155 The consideration was alleged,
"....
but it remained past consideration.156 Baker calls it, in that sense, "almost
judges apparently refused to their deaths to follow the Slade 's Case rule, and one judge reportedly
changed his mind. Ibbetson, supra note 23, at 304-05.
149 4 Coke at 94a, 76 Eng. Rep. at 1077. Any lingering doubts about whether the courts would
follow Slade's Case were resolved in 1608, in Woodford v. Deacon, Cro. Jac. 206, 79 Eng. Rep. 180
(Ex. Ch. 1608).
150 E.g., Paramour v. Payne, Moore 703, 72 Eng. Rep. 852 (Ex. Ch. 1596).
151 Woodford v. Deacon, Cro. Jac. 206, 79 Eng. Rep. 180 (Ex. Ch. 1608).
152 Id.; see also Hughes v. Robotham, Popham 30, 31, 79 Eng. Rep. 1150, 1151 (K.B. 1593) (per
Gawdy, J: "And therefore in an action upon the case upon an assumpsit, it sufficeth to say, that
whereas the defendant was indebted to the plaintiff in divers sums of money amounting in all to an
100f. the defendant assumed to pay the 100f. at such a day, without saying, how, or in what manner
these debts accrued, or when, because the action is not meerly founded upon the debt but upon the
promise, and the debts are but inducements to it: but if it were to recover the debts themselves in an
action of debt, there ought to be made a certainty thereof, to wit, when, and how it comes.").
153 Woodford, Cro. Jac. At 206, 79 Eng. Rep. at 180 (reasoning that the declaration "doth not
shew for what cause the debt grew, viz. for rent, or by specialty, or by record: for if it was by any of
those means, a general assumpsit will not lie").
154 Buckingham v. Costendine, Cro. Jac. 214, 79 Eng. Rep. 186 (1608) (so ruling on a declaration
alleging "that the defendant being indebted to him in forty shillings, in considerationeinde assumed to
pay").
155 See, e.g., R. v. W., (c. 1670) (cited in BAKER & MILSOM, supra note 10, at 474); BAKER,
supra note 79, at 395; 1II JOHN WENTWORTH, A COMPLETE SYSTEM OF PLEADING 54-95 (1797-99)
(giving examples from the second half of the eighteenth century).
156 Hodge v. Vavisour, 3 Buls. 222, 81 Eng. Rep. 188 (K.B. 1616) ("[H]ere the defendant is
clogged with a debt continually, and therefore this is here a good consideration to raise a promise.").
GEO. MASON L. REV. [VOL. 9:1l
fictitious."157
' Yet, from this form grew the common counts "for goods sold
and delivered, . . . [for goods] bargained and sold, for work done, for
money lent, for money laid out to the plaintiff's use at his request, for
money had and received to the plaintiffs use, and for money due upon an
account stated ... ."I Because the allegation of consideration in the
common counts was fictitious, the common counts came to impose liabil-
ity far beyond exchange. The common counts did a lion's share of the
common law's work in the personal obligations area, and continue to do so
today in our law of quasi-contract and unjust enrichment.15 9 Thus, a great
deal of what we now call "contract law" was enforced without relying on
consideration. The origins of quasi-contract and unjust enrichment present
another branch of circumstance in which a promise became actionable, and
a personal obligation was created, in which consideration was and remains
irrelevant. Sixteenth century jurists are also partly responsible for this de-
velopment.
D. Promises To Pay a Testator'sDebt: Assets in the Executor's Hands
Sometimes the sixteenth century courts called either the testator's as-
sets or other sufficient assets in the hands of the executor consideration for
the executor's promise to pay the testator's debt.16 Other cases speak of 161
the defendant's being made administrator or executor as a consideration.
Suits against executors for the contract debts of testators also present diffi-
culties for making sense of consideration. Whatever consideration existed
was past. 162 But that was not a valid objection. 163 In fact, these cases did
Rolle said of Hodge: "In this [action] case does not lie as upon a future contract because the contract
was executed before and will not make a new contract." 1 Rolle 413, 81 Eng. Rep. 573, 574 (1616)
(translated).
157 BAKER, supra note 79, at 395.
158 Id. The list comes from id. at 395. Ibbetson reviews how the common counts grew out of
indebitatusassmupsit in IBBETSON, OBLIGATIONS, supra note 17 at 147-51.
159 See, e.g., RESTATEMENT OF RESTITUTION, Introductory Note, 4-10 (1937); I GEORGE E.
PALMER, THE LAW OF RESTITUTION 1.1-1.2 (1978).
160 See Anonymous, 2 Leon. 221, 74 Eng. Rep. 494 (K.B. 1574) ("in consideration that the de-
fendant had assets to pay all debts and legacies"); Howell v. Trivanian, I Leon. 93, 74 Eng. Rep. 87,
Cro. Eliz. 91, 78 Eng. Rep. 349 (K.B. 1588) ("in consideration that the said goods [delivered to the
testator] came to the hands of the testator, and also afterwards the goods came to the defendant's
hands"); Anon., Goulds. between 94 and 136, case no. 14; see also, e.g., Stubbings v. Rotheram, Cro.
Eliz. 454, 78 Eng. Rep. 693 (Exch. Ch. 1595) (naming in the declaration only a marriage-based prom-
ise made by the testator as consideration); Serle v. Rosse, Cro. Eliz. 459, 78 Eng. Rep. 697 (Exch. Ch.
1596) (same as Stubbings).
161 See Palmer v. Waddington, 3 Leon. 129, 74 Eng. Rep. 585 (C.P. 1586) (holding no "good
consideration set forth" in the declaration "for it is not said, that in consideration that the said [testator]
made the defendant his executor"); Filcocks v. Holt, 1 Leon. 240, 74 Eng. Rep. 219 (Exch. Ch. 1590)
(defendant was administratrix, though the plaintiff lost in this case because the defendant was not
administratrix at the time she made the promise at issue).
162 See, e.g., Howell v. Trivanian, 1 Leon. At 94, 74 Eng. Rep. 87, Cro. Eliz. 91, 78 Eng. Rep.
349 (1588) ("[It is a thing before executed, and not depending upon the promise, nor the promise upon
not rest on the reciprocity principle, but may have rested upon some sort of
unjust enrichment or moral obligation of the estate." 6 Howel v. Trivanian
165
(15 88) is a good example of this latter understanding.
In this case, Howel delivered certain goods to the testator, which put
the testator in debt to Howel. 166 The testator made the testator's brother,
Trivanian, executor of his estate and then died. Howel then spoke with
Trivanian about the goods, at which time Trivanian said that if Howel
could prove the goods were delivered, he would pay Howel the value of
them. The consideration alleged in the complaint was that "the said goods
came to the hands of the testator, and also afterwards the goods came to
the defendant's hands. ' 1 67 Howel won a judgment, but Trivanian brought a
writ of error in the King's Bench. Trivanian argued that he had no benefit
and that having goods from his brother (the testator) was "a thing before
executed, and not depending upon the promise, nor the promise upon it."
The King's Bench affirmed the judgment anyway, probably by following
prior precedent in Sir William Cook's Case, in which it was held that the
promise of an executor such as Trivanian "is good without any other con-
sideration, if he hath assets of the testator in his hands, otherwise not for
168
the consideration is only by reason of the act and debt of the testator."'
Another case in this line is Pyne v. Hide (1601), 169 involving not a
testator's debt, but a testator's liability in assumpsit. Gouldsborough's
brief report of the case says that Pyne brought an assumpsit against Hide, a
widow, "as executrix of her husband," declaring that "in consideration that
[Pyne] had leased to [the testator] certain copyhold-land, [the testator]
assumed to pay to [Pyne] 100." To this, Hide demurred, but the King's
Bench gave judgment. 7 Thus, in Pyne, it appears that the debt or perhaps
even the prior assumpsit-based liability of the testator was sufficient to
allow judgment in the King's Bench.
It appears from these and like cases that in a suit against an executor
for the debt of the testator, no consideration was necessary, or at least all
it."); see also Lord Grey's Case, SIMPSON, supra note 7, at 633.
163 1 Leon. at 93, 74 Eng. Rep. at 87, Cro. Eliz. at 91, 78 Eng. Rep. at 349.
164 SIMPSON, supranote 7, at 439-45.
165 1 Leon. 93, 74 Eng. Rep. 87, Cro. Eliz. 91, 78 Eng. Rep. 349 (K.B. 1588). Langdell said of
Trivanian, "It is not entirely clear upon what ground the case of Trewinian v. Howell was decided; but
it is impossible to support it upon any ground." LANGDELL, supra note 32, at 94.
166 Cro. Eliz. at 91, 78 Eng. Rep. at 349-50.
167 1 Leon. at 93, 74 Eng. Rep. at 87.
168 Cro. Eliz. at 91, 78 Eng. Rep. at 350 (argued by Coke, and apparently accepted by the court).
169 Goulds. 154, 75 Eng. Rep. 1060 (K.B. 1601).
170 Goulds. at 155, 75 Eng. Rep. at 1061. How much we can read into this judgment is perhaps
limited because Chief Justice Popham in giving judgment knew that the Exchequer Chamber would
overrule it: "Popham: For the contrariety of opinion in this case between the Judges of the Common-
Pleas and us, we will make it an Exchequer-Chamber case, and so try the law." Id. The Common Pleas
overruled a number of other cases founded on debt during this period. E.g., Gowood v. Binkes, Owen
56, 74 Eng. Rep. 896 (K.B. 1594); Jordan v. Harvey, reported in Gowood (1594).
that was necessary was an allegation that the executor had assets from the
testator. These precedents probably reflect an effort to ensure that execu-
tors acted according to the faith reposed in them by the testator and were
not unjustly enriched. In these cases, as well as in actions of prior debt,
relief had been granted in assumpsit prior to serious thought about the con-
sideration requirement, 7 ' as early as 1520,172 and again in 1557 in Nor-
wood v. Norwood & Rede, conspicuously in print by 1571 .17 The judges'
reasoning is not reported in Norwood, but plaintiff's counsel argued:
[l]t is not reasonable that if [the executors] have assets to pay the debts and legacies, and
also to satisfy the plaintiff himself, that they should retain the rest of the goods to their own
use. And to pay this is no way prejudicial, but charitable and beneficial for the soul of the
testator, but to leave it unpaid is good to none but the executors, and they ought not to have
the benefit of it, for that was not the intent of the testator, and they are no more than minis-
ters and distributors of the goods of the deceased, and by applying the benefit of his debts 174
to
themselves they are guilty of a breach of that trust which the deceased reposed in them.
This form of action survived thereafter at common law,'75 though

finding consideration by alleging assets was dropped by 1612, and only the
prior debt of the testator was alleged. 17 6 Over time the action encompassed
not just instances of the testator's debt on a contract, but all cases of
promissory liability. 17 7 Our law still retains some of the substance of this
171 Popham said in Hughes v. Robotham, Popham 30, 32, 79 Eng. Rep. 1150, 1152 (K.B. 1593),
that this kind of action "hath been common and of long time used, and therefore now too late to be
drawn in question."
172 Cleymond v. Vyncent, Y.B. Mich. 12 Hen. VII1, f.ll, pl.3 (K.B. 1520) (cited in BAKER &
MILSOM, supra note 10, at 446).
173 Plowden 180, 75 Eng. Rep. 277, (K.B. 1557) (cited in BAKER & MILSOM, supra note 10, at
448).
174 Plowden at 182, 75 Eng. Rep. at 280, (cited in BAKER & MILSOM, supra note 10, at 450). See
also Coke's reasoning in Pinchon's Case, 9 Rep. 86b, 88b, 77 Eng. Rep. 859, 863 (Exch. Ch. 1611)
("And the executors who in truth have the goods in another right, so to pay the debts, &c. of the testa-
tor, shall not convert them to their private use, without paying the just and true debts of the testator; for
that would be against justice and right, and against the office of executors, who are but ministers and
dispensers of the goods of the dead; and notwithstanding the testator's death, yet the debt remains, for
death is no discharge of the debt; and it would be a great defect in the law, that no remedy should be
given for it .... ).
175 Pinchon's Case, 9 Coke 86b, 77 Eng. Rep. 859 (Exch. Ch. 1611), established with finality
that assumpsit was available against executors for debts of the testator for which the creditor could
have brought an action in debt against the testator during the testator's lifetime. The executor's liability
in assumpsit for the debts of the testator was another point of conflict between the Common Pleas and
the King's Bench similar to the dispute outlined in Slade's Case. Eventually, in Pinchon's case, ac-
tionability won out. See SIMPSON, supra note 7, at 439-35, 558-73; BAKER, supra note 13, at 428-30.
176 Pinchon 's Case, 9 Coke at 90b, 77 Eng. Rep. 866 ("Lastly, it was resolved in this case, that it
was not necessary to aver that the defendants had assets to pay legacies; as it was also resolved in the
said case between Norwood and Read, for debts upon simple contract are to be paid before legacies.");
Cottington v. Hulett, 451, Cro. Eliz. 59, 78 Eng. Rep. 320 (K.B. 1587) (cited in BAKER & MILSOM,
supra note 10.) A far more complete rendition of the history of this line of cases appears in lbbetson,
Sixteenth Century ContractLaw, supranote 23, and BAKER, supra note 13, at 393-432.
177 See SIMPSON, supra note 7, at 572-73.
development. For example, the contractual debts of a testator survive the

death of the testator and must be paid by the executor from the testator's
estate before legacies are distributed.'78 This development occurred in part
because Elizabethan judges ignored the consideration requirement.
E. Assent Without Consideration
Lawyers and judges occasionally voiced concern that assumpsit did

not take account of the presence of mutual agreement. In fact, some law-
yers opined that the focal point of the assumpsit doctrines was to enforce
179
agreements.
Perhaps this is why, by the 1590s, courts had begun inferring consid-
eration from circumstances showing assent, even when no valid consid-
eration was alleged in the complaint or found at trial. In Reynolds v. Pin-
howe, 180 the defendant had obtained a judgment of 5f. against the plaintiff
in a prior suit. But the plaintiff bargained with his creditor. The plaintiff's
declaration reports that in consideration of 4f. given by the plaintiff to the
defendant, the defendant promised to acknowledge satisfaction of the debt.
Plaintiff paid the 4f., but defendant refused to acknowledge satisfaction.
Reynolds should sound familiar to contract law students, as its facts are
178 See, e.g., Kartoghian v. Harboth, 56 S.W. 79 (Tex. Civ. App. 1900) (successful suit against an
administrator on an informal debt generated by a loan transaction).
179 Coke in Slade's Case makes a similar statement: "[T]he mutual executory agreement of both
parties imports in itself reciprocal actions upon the case." Slade's Case, 4 Co. Rep. 92b, 94b, 76 Eng.
Rep. 1074, 1077 (1602); Penson v. Higbed, 4 Leon. 99, 74 Eng. Rep. 756 (K.B. 1590) (Wray, J.,
admitting that a "mutual promise and agreement" "is an assumpsit in law"); Richards v. Bartlet, 1
Leon. 19, 74 Eng. Rep. 17, 18 (K.B. 1584) (in response to a plea in bar: "[N]o profit but damage
comes to the plaintiff by this new agreement, and the defendant is not put to any labour or charge by it,
therefore here is not any agreement to bind the plaintiff."); Reniger v. Fogossa, Plo. 1, 5, 75 Eng. Rep.
1, 7 (1550) (Argument of counsel: "[A]n agreement concerning personal things is a mutual assent of
the parties, and ought to be executed with a recompence, or else ought to be so certain and sufficient,
as to give an action or other remedy for a recompence: and if it is not so, then it shall [not] be called an
agreement, but rather a nude communication without effect." (lbbetson explains that the English
translation of Plowden omits the word "not" in the final sentence. Ibbetson, Consideration,supra note
17, at 104 n.96.)); BAKER, supra note 13, at 396-98 (arguments of Laurence Tanfield for John Slade in
Slade 's Case, that "assumption is nothing but a mutual agreement between the parties for a thing to be
performed by the defendant in considcration of some benefit which must depart from, or of some
labour or prejudice which must be sustained by, the plaintiff'); II WILLIAM FULBECK, A PARELLELE
OF CONFERENCE OF THE CIVIL LAW, THE CANON LAW, AND THE COMMON LAW OF THIS REALME OF
ENGLAND 18b (1602). For later statements of the same principal, see Ibbetson, Consideration,supra
note 17, at 102-03, reporting language from Hurford v. Pile, Harv. MS 105f f.291 (1618) ("[E]very
assumpsit is made by the mutual agreement of both parties, and through this creates a contract as in
[Slade's Case], and because of this the person who assumes cannot make a countermand, for a bargain
is a bargain ....");Opie v. Peters, 2 Keble 837, 84 Eng. Rep. 529, 530 (1671) (Saunders, for the
defendant: "A mutual promise is but the construction of law on a mutual agreement."). From these and
other evidences, Ibbetson concludes that in assumpsit actions "it was the two-sided agreement of the
parties that mattered, not the one-sided promise." IBBETSON, OBLIGATIONS, supra note 17, at 135-40.
lbbetson argues that many saw the willing agreement of the parties as a basis of liability. Id. at 145-47.
180 Cro. Eliz. 429, 78 Eng. Rep. 669, Moore 412, 72 Eng. Rep. 663 (K.B. 1594).
substantively identical to Foakes v. Beer.181 In Reynolds, the plaintiff had a

preexisting duty to pay the judgment. It seems unthinkable that payment of
part of the judgment would serve as consideration for the defendant's
promise to acknowledge satisfaction of the whole, which is exactly the
reasoning behind the House of Lord's later decision in Foakes that no con-
sideration existed. 182 But the Reynolds court held that payment of part of
the judgment was a good consideration. Its analysis goes well beyond the
consideration alleged. Croke says that "all the Court held it to be well
enough; for it was a benefit unto him to have it without suit or charge: and
it may be there was error in the record, so as the party might have avoided
it."' 83 Moore noted that the consideration was "adjudged good, because
speedy payment excuses & prevents travail & expense of suit."' 84 And
Reynolds was not the only case to reach this result in the sixteenth
century.185 Perhaps if courts had been as willing to infer consideration after
the sixteenth century, Foakes v. Beer never would have happened.
The most striking case inferring consideration in the published reports
is Riches v. Bridges.1 86 Riches was indebted to a third party to pay twenty
combs of grain, to be delivered on a certain day. Bridges promised to de-
liver the grain to the third party in consideration that Riches would deliver
the grain to him before that day. Riches delivered the grain to Bridges, but
181 9 App. Cas. 605 (Lords 1884).

182 Id. at 616-30.
183 Cro. Eliz. at 429, 78 Eng. Rep. at 669.
184 Moore at 412, 72 Eng. Rep. at 663.
185 See, e.g., Cooke v. Hewit (1581), discussed in Greenleaf v. Barker, 1 Leon. 238, 239, 74 Eng.
Rep. 217, 218, Cro. Eliz. 193, 195, 78 Eng. Rep. 449, 450 (K.B. 1590) (in Cooke, the debtor paid the
full amount of the debt in exchange for the creditor's promise to return the bond upon which the debt
was founded; this agreement was found enforceable in assumpsit); Richards v. Barlet, I Leon. 19, 74
Eng. Rep. 17, 18 (K.B. 1584) (opining in dicta that such an agreement would have "been sufficient, yet
because it is not executed," it was not binding in this case); Goring v. Goring, Yelv. 11, 80 Eng. Rep. 8
(K.B. 1607-08) ("And (per Curiam) the consideration alledged is sufficient for another reason; for
although the plaintiff has not shewn that he has discharged the defendant of the 2051. Yet if the defen-
dant should be afterwards charged with it, he might have assumpsit against the plaintiff; for the plain-
tiff agreeing to take 1501. for 2051. is a promise on his part, and so one promise against another."); see
further discussion of Goring infra at text accompanying notes 201-02.
186 Cro. Eliz. 883, 78 Eng. Rep. 1108, Yelv. 4, 80 Eng. Rep. 4 (K.B. 1602). See also Retchford v.
Spurlinge, BAKER & MILSOM, supra note 10, at 500 (K.B. 1591) (quoting unpublished reports at HLS
MS 16, fo. 315v, and CUL MS Ii. 5. 16, fo. 97v). Retchford may well have been precedent for Riches.
Retchford delivered 6 of his own money to Spurlinge to the use of Glanfeyld, to whom Retchford
owed money. Spurlinge on this consideration promised to pay the money to Glanfeyld and to save
Retchford harmless against Glanfeyld. But Spurlinge failed to deliver the money. Spurlinge later
demurred to Retchford's assumpsit action, arguing that no consideration existed because Spurlinge
"took no benefit from the money, which he was to deliver to someone else." Id. at 501. In response to
this, the court hypothesized a consideration: "[H]aving the money in his hands for only a day, or an
hour, is such a profit to Spurlinge that it shall be called sufficient consideration to have an action on the
case." Id. (quoting from HLS MS 16, fo. 315v). The other report of the case has the court hypothesiz-
ing that Spurlinge may have intended the money to be a loan. Id. at 501. The court may have felt
somewhat uncertain about this method of finding consideration. It gave a day in the future for judg-
ment "unless the defendant showed some other matter." Id.
Bridges did not deliver it to the third party, so Riches sued. After Riches
won at trial, Bridges moved in arrest of judgment that there was no consid-
eration to deliver the grain, because he had no benefit by it. Indeed, any
use of the grain would have lessened its value.
Nonetheless, the entire Queen's Bench held that the facts showed
Bridges had received a benefit. Their analysis rested solely on facts the
court thought likely, but could not and did not bother to prove:
[T]he very possession of the wheat might be a credit and good countenance to the defendant
to be esteemed a rich farmer in the country, as in case of the delivery of the 1000f. in
money to deliver again upon request; for1 87
by having so much money in his possession he
may happen to be preferr'd in marriage.
Another account of the case has the court reasoning that Bridges would
never have promised to perform if he was not getting something out of the
deal. In fact, the court presumed consideration from his promise and re-
ceipt of the grain:
[l]n regard he received it, and made such a promise, it shall be intended that he had some
benefit thereby, viz. that he had188
the better credit to retain it in his hands; or otherwise he
would not make such a promise.
The court is not content to infer consideration from the facts in this
case alone; rather, it is willing to state as a general proposition with respect
to consideration: "if by any intendment it can be, the law will well intend
it.'' 189 In other words, if the defendant might have been induced to promise
in the hope of receiving a benefit, then the promise is enforceable."19 That
is a very generous stance with respect to consideration, particularly if con-
sideration was, as Coke once said, the "ground of every action on the
case." 191 In fact, the common law courts were quick to correct an insuffi-
187 Yelv. at 4, 80 Eng. Rep. at 4.

188 Cro. Eliz., at 884, 78 Eng. Rep. at 1108 (emphasis added).
189 Id.
190 Frequently creditors would forbear collecting debts for some time in exchange for a promise
to pay. This exchange of promise to pay for forbearance consideration allowed the creditor to bring an
assumpsit action. E.g., Brown v. Ordinacre, 2 Leon. 112, 74 Eng. Rep. 402 (1590). Just how much
time the creditor had to agree to wait sometimes mattered; some cases held that a "paululum tempus"
was insufficient. See Sackford v. Philips, Cro. Eliz. 455, 78 Eng. Rep. 694 (Ex. Ch. 1595) (that paulu-
lum tempus was alleged as the time period in this case is a fact we learn from the report of Tolhurst v.
Brickenden at I Bulst. 91, 80 Eng. Rep. 790 (K.B. 1610)); Lutwich v. Hussey, Cro. Eliz. 19, 78 Eng.
Rep. 286 (C.P. 1582). But see Estrigge v. Owles, 3 Leon. 200, 74 Eng. Rep. 632 (K.B. 1588-89)
(holding that "forbearance per paululum tempus, is a good consideration"). lbbetson describes a few
unpublished King's Bench cases in which, consistent with Riches v. Bridges, the King's Bench "did
not even require a positive averment [of the requisite period of time]: the court would infer an intention
that the forbearance be for a reasonable time ut res magis valeat quam pereat." Ibbetson, Considera-
tion, supra note 17, at 76.
191 Stone v. Withepoole, Owen 94,74 Eng. Rep. 924 (K.B. 1588).
cient declaration by "intending" facts and connections.192 But in Law v.

Sanders they declared, "[N]o matter of substance shall be supplied by in-
tendment, nor shall the verdict help it."' 93 The only way to square Riches
and Law is to say that consideration was no longer a matter of substance. It
is no wonder that Riches was later reversed. As Croke reports: "Note, af-
terwards upon a writ of error in the Exchequer Chamber, it was reversed
for this cause; for that there was not any sufficient consideration whereof
the law takes any regard."'1 94
That did not stop the King's Bench from resurrecting Riches as prece-
dent two years later, however. In Game v. Harvie,19 5 the King's Bench
once again inferred a consideration. There, the plaintiff alleged that he
loaned money to the defendant, who promised to pay it back on request.
The defendant refused to pay it back when requested, and the plaintiff sued
in assumpsit and won at trial. In a motion for arrest of the judgment, Yel-
verton for the defense challenged the allegation of consideration, arguing
that because the money was to be paid back on request, "it might be lent
with one hand, and immediately demanded" with the other, in which case
the plaintiff borrower would have no benefit from it.
The entire King's Bench disagreed and cited again the general rule an-
nounced in Bridges: "when the intent of the parties may stand with the
law, it shall be expounded accordingly." Chief Justice Popham then as-
192 See, e.g., Lucy v. Walwyn, BAKER & MILSOM, supra note 10, at 485, 486 (K.B. 1561) (argu-
ments of Bromley for the plaintiff, as to what would constitute a consideration "in law"); Brown v.
Ordinacre, 2 Leon. 112, 113, 74 Eng. Rep. 402 (K.B. 1590) (answering to the objection that the plain-
tiff did not forbear for a second week, as his declaration alleged was to be part of the consideration for
his promise, "that was not allowed, for so it shall be intended"); Crispe v. Golding, Cro. Eliz. 50, 78
Eng. Rep. 312 (K.B. 1586); Barkly v. Kempstow, Cro. Eliz. 123, 78 Eng. Rep. 381 (1589) (implying in
law that a warrant was in writing and under seal); Ireland v. Higgins, Cro. Eliz. 125, 126, 78 Eng. Rep.
383 (K.B. 1589) (holding that "the plaintiff need not in this case aver the dog was tame, for the law
intends it, as of a horse," which overcame the objections that the dog was wild and thusferae naturae);
Neve v. Lyne, Cro. Eliz. 460, 78 Eng. Rep. 713 (K.B. 1596); Mackerell v. Bachelor, Goulds. 168, 169,
75 Eng. Rep. 1070, Cro. Eliz. 583, 78 Eng. Rep. 826 (K.B. 1597) (Gawdy, J, holding that "it shall be
intended" that the plaintiff's confession that the infant defendant had paid for part of his apparel,
without saying which, should apply to the necessary apparel, and not that unnecessary apparel for
which infants are not liable); East v. Thoroughgood, Cro. Eliz. 834, 78 Eng. Rep. 1061 (K.B. 1601)
(holding that alleging a general dislike of something purchased, where satisfaction is a condition of
purchase, "shall be intended to be within the time" for repayment of the sales price, "unless it be shewn
to the contrary").
193 Lawe v. Sanders, Cro. Eliz. 913, 78 Eng. Rep. 1134, Noy 50, 74 Eng. Rep. 1019 (K.B. 1602).
Yet "intendment" was in the air. Humfrey Morley, the defendant in Slade 's Case, had claimed that he
made no explicit undertaking. Tanfield and Coke for plaintiff John Slade both argued successfully that
Morley's words amounted to the same thing in substance and should therefore be considered an un-
dertaking by the law. BAKER, supra note 13, at 396-98 & n.27 (Tanfield: "And here in our case the
countrymen do not know how to use the apt words. For it is not used amongst them to say that "in
consideration that you will do such a thing, I assume to pay you such or such sum," but still the law
will make their words to be effectual.").
194 Cro. Eliz. At 884, 78 Eng. Rep. at 1108, Yelv. at 4, 80 Eng. Rep. at 4.
195 Yelv. 50, 80 Eng. Rep. 36 (K.B. 1604).
sumed the likely facts, concluding that "the promise is grounded on an

accommodation, viz. a loan, which implies an use of the 301. by the defen-
dant." The defendant's use of the money would have been a clear benefit.
The court thereby corrected by implication what it did not have in the 96
declaration, much as Cardozo did in Wood v. Lucy, Lady Duff-Gordon.
In support of its decision, the King's Bench cited Riches v. Bridges. Yel-
verton objected that Riches had been reversed in the Exchequer Chamber,
but the court "said it was erroneously reversed" and proceeded to follow it
anyway.197 Thus, it appears that in some cases the King's Bench view won
out that consideration was not a matter of substance.
In some cases, the courts dropped the consideration requirement com-
pletely when assent was clear and no evidence existed that the promisor
had erred. In Ward v. Grimwise, 98 the defendant promised to pay the debt
of his father if the plaintiff would not sue the father. But the plaintiff made
no explicit promise not to sue the father. When the plaintiff sued the de-
fendant in assumpsit and won, the defendant objected to the Common
Pleas that "here there was not any express mutual agreement because the
plaintiff did not undertake directly that he would not sue [my] father."',
The defendant was afraid that only he was bound to his guarantee, that the
plaintiff might recover from the defendant and then sue the father anyway.
However the court seems to have understood that serious parties would not
agree to such a thing. Rather than let the defendant off, the court inferred
by law the mutual promise from the agreement itself: "[T]he acceptance
[by the plaintiff] of the [defendant's] undertaking implies a certain ...
assumpsit on behalf of the plaintiff that he not prosecute" the father.2"
Thus, in Ward, assent sufficed when consideration was actually absent.
Another example is Goring v. Goring. 1 H. Goring owed a contract
debt to Smith in the amount of 205f. Smith made J. Goring his executor,
then died. J. Goring then "was contented to take" of H. Goring 150f.
rather than 205. The 150f. was to be paid 20f. per annum. When H.
Goring failed to pay, J. Goring brought assumpsit. A jury found for the
plaintiff. H. Goring later objected that consideration here was not suffi-
196 118 N.E. 214 (N.Y. 1917). In Wood, Lucy, Lady Duff-Gordon, granted to Wood an exclusive
right to market and sell goods Lucy designed or endorsed. During the term of the contract, Lucy sold
goods herself and refused to give Wood his share of profits. When Wood sued, Lucy objected that
under the contract Wood suffered no detriment and indeed promised none. The contract imposed on
Wood no obligation to sell. Rather than let Lucy breach with impunity, Cardozo inferred from the facts
of the case and what he knew about the parties' profit-centered motives an obligation on Wood's part
to make reasonable efforts to sell. This obligation then sufficed as consideration for Lucy's promise to
split profits. Id. at 215.
197 Game v. Harvie, Yelv. 50, 80 Eng. Rep. 36 (K.B. 1604).
198 Harv. MS 105b, f.23; Harv.MS 1004a, f.48 (C.P.1599).
199 Harv. MS 105b, f.23 (author's translation).
200 Id.
201 Yelv. 11, 80 Eng. Rep. 8 (K.B. 1607-08).
cient, because he "remain[ed] still charged with the 205f. and subject to
the plaintiff's action for the 205L." But the entire court agreed that
the consideration alledged is sufficient for another reason; for although the plaintiff has not
shewn that he has discharged the defendant of the 205f. yet if the defendant should be af-
terwards charged with it, he might have assumpsit against the plaintiff; for the plaintiff
agreeing to take 150f. for 205f. is a promise on his part, and so one promise against an-
20 2
other.
Chief Justice Wray provides a similar example. In Marsh v.

Rainsford,20 3 a defendant father had promised his son-in-law marriage
money after the couple had already eloped. The marriage, being past,
could not be consideration. But the court granted judgment to the plaintiff
son-in-law, anyway. In the course of the argument, Wray reasoned:
When I promise him so much money in consideration that he has married my daughter this
also is understood to be included in my promise, that he ought to use my daughter well, and
this is future and executory, and thus it seems to me that the consideration is sufficient. 204
Thus, in Goring and Marsh, as well as in Ward, judges were willing to

infer a promise as consideration in an agreement. Clearly the agreement,
not the consideration, is the primary ground of liability.0 5
Civil law of the time also enforced promises based on the parties'
mutual assent.20 6 The common law itself allowed a promise to become
enforceable without consideration if it was given under seal-formal as-
sent would suffice even without the informal prerequisites for liability.
Given that the simple act of sealing the promise in writing would render it
actionable without regard to consideration, it is not so surprising that
courts would disregard the consideration doctrine occasionally in cases of
clear assent.
F. Jumping to the Forefrontof Autonomy
This study's final example of sixteenth century innovation in the as-

sumpsit form requires some introduction. A recent trend in contract law
scholarship attempts to do away with the consideration requirement in
202 Yelv. at 11, 80 Eng. Rep. at 9.

203 See supra note 50; SIMPSON, supra note 7, at 633 (giving a translation of an unpublished
report found at HLS MS 16, f. 393b) (K.B. 1587-88).
204 SIMPSON, supra note 7, at 636. The court's reasoning in the case seems in the end to rest on
love and affection, supra note 50.
205 Simpson's definition of consideration as including any acceptable "reason for promising,"
SIMPSON, supra note 7, at 406-88, also fails to explain why courts would in cases such as Ward and
Goring dispense with the requirement-or imply it by law-when agreement was clear. Only Ibbet-
son's view grounding liability at least partially in agreement, see supra notes 17-18 & accompanying
text, accounts for these variations.
206 E.g., II WILLIAM FULBECK, supra note 179, at 1, 18a-b.
cases where the economic motives of the promisor are obvious, but no
benefit ever reaches the promisor, and neither detriment to the promisee
nor return promise occurs.20 7 Scholars urge enforcement in these cases if
the promise may be rationally thought to facilitate economic exchange or
to make exchange more probable.2 8 Some courts have agreed. 9
Unfortunately, these commentators feel confronted by a wall of
precedent. In order to suggest that these promises should be actionable,
they feel they have to argue against a variety of doctrines, including con- 211
sideration itself,210 as well as its corollaries: the illusory promise rule,
mutuality of obligation, 212 the pre-existing duty rule, 213 and past consid-
207 See supra sources cited note 24.

208 Barnett, supra note 24, at 523, 528-29; Eisenberg, supra note 24, at 1008-10; Farber &
Matheson, supra note 24, at 945; Gordon, Commercial-Gift, supra note 1, at 285 ("related to an ex-
change"); Wessman, supra note 1, at 115-16.
209 Many of these cases involve employers' promises to employees, such as promises for stock
options. See, e.g., Zupnick v. Goizueta, 698 A.2d 384, 388 (Del. Ch. 1997) ("[T]he consideration for
stock options is often the reasonable prospect of obtaining the employee's valued future services.");
Beard v. Elster, 160 A.2d 731, 735 (Del. 1960) (analyzing the validity of a promise for stock options
on the basis of future benefits the corporation might obtain). Such promises also include promises for
job security, as in Toussaint v. Blue Cross & Blue Shield, 292 N.W.2d 880, 884-85 (Mich. 1980). See
Murphy v. Birchtree Dental, P.C., 964 F. Supp. 245, 247-50 (E.D. Mich. 1997); In re Certified Ques-
tion, 443 N.W.2d 112, 113 (Mich. 1989); Hetes v. Schefman & Miller Law Office, 393 N.W.2d 577,
578 (Mich. Ct. App. 1986); Damrow v. Thumb Cooperative Terminal, Inc., 337 N.W.2d 338, 341-42
(Mich. App. 1983). But this movement is not limited to employment contexts. See, e.g., Arrow Indus.,
Inc. v. Zions First Nat'l Bank, 767 P.2d 935, 940 (Utah 1988) (including "the good will flowing from"
certain promises as well as other benefits in its consideration analysis). Some prize cases also seem to
adopt a similar theory. See Midwest Television, Inc. v. Waaler, 194 N.E.2d 653, 657 (Il1. Ct. App.
1963) ("The benefit accruing to the sponsor is the increase in the number of persons entering the store,
regardless of whether or not they all come to buy his goods."); Society Theater v. City of Seattle, 203
P. 21, 22 (Wash. 1922) ("The fact that prizes of more or less value are to be distributed will attract
persons to the theaters who would not otherwise attend. In this manner those obtaining prizes pay
consideration for them, and the theaters reap a direct financial benefit."). A variety of ways to account
for enforcement of advertising games is discussed in Mark B. Wessman, Is "Contract" the Name of
the Game: Promotional Games as Test Cases for Contract Theory, 34 ARIZ. L. REV. 635 (1992).
Traces of this kind of thinking about promises is, of course, found throughout the history of contract
law. Cf Carlill v. Carbolic Smoke Ball Co., I Q.B. 256, 275 (Ct. App. 1892) (L.J. Smith: "There are
two considerations here. One is the ... inconvenience of having to use this carbolic smoke ball...;
and the other more important consideration is the money gain likely to accrue to the defendants by the
enhanced sale of the smoke balls, by reason of the plaintiff's user of them."); Wild v. Harris, 7 C.B.
999 (1849) (holding that a married man's promise to marry after a reasonable time was valid consid-
eration for woman plaintiff's promise to marry him because his wife might die during the reasonable
time; the possibility of marriage was counted a consideration).
210 E.g., Gordon and Wessman feel a need to replace consideration itself. Gordon, Commercial-
Gift, supra note 1, at 285; Gordon, Dialogue, supra note 1, at 992-93; Wessman, Consideration 2,
supranote 1, at 713; Wessman, Consideration1, supra note 1, at 45-5 1.
211 See, e.g., Eisenberg, supra note 24, at 1012-18; Gordon, Dialogue, supra note 1, at 987-91;
Wessman, Consideration 1, supra note I, at 105-14.
212 See, e.g., Barnett, supra note 24, at 529-36; Farber & Matheson, supra note 24, at 929-34;
Gordon, Commercial-Gift,supra note 1, at 291-92, 306-07; Wessman, Consideration2, supra note 1,
at 713; see generally, Ricks, Mutuality, supra note 5, at 531-47.
213 Eisenberg, supra note 24, at 1034-41; Gordon, Commercial-Gift, supra note 1, at 288-90;
Wessman, Consideration 2, supra note 1, at 743-71.
eration doctrines.214 If courts now felt, as sixteenth century courts did, less
bound by an exchange requirement, the probable benefit case would be a
much easier argument. In fact, it did present a much easier argument in
assumpsit in the sixteenth century when Coke himself made it.
The case was Pearle v. Edwards (1588).215 In this case, Pearle leased
some land from Edwards for a term of years. After Pearle had possessed
the land and paid rent for a few years, Edwards promised to hold Pearle
harmless against all persons for the occupation of the land during the term
of the lease, for the years past as well as future. Later, H. took Pearle's
cattle, arguing that they were grazing on H.'s land, the land Edwards had
leased to Pearle. Pearle sued Edwards under his promise to hold Pearle
harmless. Pearle won at trial, but Golding for the defense moved in arrest
of judgment that the consideration-namely, the lease of the land-was
past. The court rejected this contention, "for the consideration that he was
in possession, and had paid his rent, and was to pay his rent, is sufficient
cause . "216
This is essentially a time-bending argument, for the lease itself was

past, and Pearle had a prior duty under the lease to pay rent. Perhaps the
court was following Coke, who argued on Pearle's behalf that a probable
benefit was a sufficient ground for actionability: "Here the payment of the
rent is executory every year; and if the lessee be saved for his occupation,
he will pay his rent the better. 2 2 ly That rationale makes economic sense in
Pearle,because if the lessor fails to secure the leasehold against the claims
of others, the lessee may well be deprived of the means of producing funds
with which to pay the rent. Edwards' promise, in other words, made actual
exchange under the present lease more likely.218 The rationale given in the
reports, though consistent with Coke's argument, does not clearly show its
adoption. Still, that Coke could argue the probable benefit notion sensibly
in the sixteenth century is telling. Courts approached the exchange re-
quirement flexibly. Without the belief that the exchange requirement is
rigid and restrictive, Coke could far more easily make the argument he
thought just.
CONCLUSION
In the sixteenth century, courts flexibly answered the question: "What

promises should be actionable?" Though they generally required that the
214 Gordon and Wessman, for example, argue against past consideration rules, Gordon, Commer-
cial-Gift,supra note 1, at 302-06; Wessman, Consideration 1, supra note 1, at 103-05.
215 Pearle and Edwards Case, Cro. Eliz. 94, 78 Eng. Rep. 353, 1 Leon. 102, 74 Eng. Rep. 95
(1588).
216 Cro. Eliz. At 94, 78 Eng. Rep. at 353.
217 1 Leon. at 102, 74 Eng. Rep. at 95.
218 See, e.g., Eisenberg, supra note 24, at 1034-41.
plaintiff show consideration in assumpsit actions, judges bent or disre-

garded the consideration requirement to enforce promises we now enforce
in promissory estoppel, moral obligation, and quasi-contract/unjust en-
richment cases. Courts also ignored the consideration requirement in
holding that informal contract debts of testators could be collected from
executors. Finally, courts granted relief in some cases on the basis of mu-
tual assent without any consideration, and lawyers argued (and courts may
have accepted the argument) that promises should be actionable solely
because they were intended to make an economic return more probable,
even when none resulted.
The upshot of all this is that in the sixteenth century the consideration
doctrine succeeded because, in a very real way, it was not doctrine, nor
was it the gatekeeper to contractual liability.2 19 When justice demanded
that the exchange requirement be fictionalized or dropped, Elizabethan
judges wisely took that course. Coke called the common law of his day,
the day which generated the consideration doctrine, an
artificial perfection of reason,.., by many successions of ages... fined and refined by an
infinite number of grave and learned men, and by long experience grown to such a perfec-
tion, for the government of this realm, as the old rule may be justly verified of it ... : No
man out 20of his own private reason ought to be wiser than the law, which is the perfection of
2
reason.
Even Coke's artificial perfection of reason never thought an exchange nec-

essary, and its "grave and learned men" expanded assumpsit law far be-
yond it, as this study shows.
However, these men were unable to finish their job. In 1941, Malcolm
Mason summarized their efforts well and said of consideration's reform:
We must work from what we have. We must indeed recognize the defects of what we have,
and we must remedy them. But what we need is not plasters but cures. This requires two
kinds of effort. Our law of consideration is a premature crystallization of case-law rules.
Decisions, sound in themselves, have been inappropriately generalized into doctrines on the
basis of inadequate experience. The cure is to go back to the more fluid state of the law and
seek new generalizations which fit our present experience. ... We must reexamine the pur-
poses the rules of consideration were intended to serve, and then reframe the rules to fit
219 See, e.g., Wessman, Consideration 1, supra note 1, at 46. Wessman in turn cites Grant Gil-
more, THE DEATH OF CONTRACT 18-34 (1974), who in turn cites Holmes, Langdell, and Williston.
Holmes indeed appears to argue that consideration is exchange and that exchange is a necessary re-
quirement for recovery in a contract not under seal. HOLMES, supranote 56, at 222-32. But elements of
those two conclusions were common among earlier contracts commentators. See, e.g., JOHN WILLIAM
SMITH, THE LAW OF CONTRACTS 81 et seq (3d American ed. 1853, reprinted by Rothman 1992) (dis-
cussing consideration as a prerequisite for enforcement of promises not under seal). Cases tying con-
sideration to exchange or mutual or reciprocal inducement are numerous. E.g., Kirksey v. Kirksey, 8
Ala. 131, 133 (1845) (declining to enforce a promise which was a "mere gratuity"); Smith v. Ide, 3 Vt.
290, 295 (1830) (discussing consideration in terms of "inducement"-the consideration induced the
promise); Gresham v. Morrow, 40 Ga. 487, 489 (1869) (same as Smith); Moore v. Davis, 49 N.H. 45,
56 (1869) (holding that the promise had induced the consideration, thereby binding the promisor).
220 Coke on Litt. 97b (1628).
their purpose.... Starting with the rules we have we must search out the principles that in-
spired these rules and we must build up new rules to the measure of those principles. At the
same time we must cut down the old rules to the same measure; we must avoid applying
them in such a manner as will defeat their own purposes. Cessante ratione cessat 221
ipse
lex..... I submit it is the sound method of the common law and the most hopeful one.
Lawmakers have in some ways taken this course in the twentieth cen-
tury by going back to the fluid state of the law with respect to the consid-
eration doctrine. When wisdom demanded that the exchange requirement
be dropped, American lawmakers took that course in order to serve other
purposes that prior to that time the consideration doctrine had served. This
continued in areas that developed during the sixteenth century-promis-
sory estoppel,222 moral obligation,2 23 unjust enrichment, the implication by
law 224 or fact 225 of consideration, and dropping consideration when assent
alone will serve. In international law, the United Nations Convention on
Contracts for the International Sale of Goods requires no consideration,
founding liability on assent without any consideration or cause require-
ment. 226 And this flexibility expanded to other areas, such that in some
cases the pre-existing duty rule has been modified or abolished, 227 and firm
offers under the UCC require no consideration.228 Similarly, certain states
221 Malcolm S. Mason, The Utility of Consideration-A Comparative View, 41 COLUM. L. REV.
825, 848 (1941).
222 See supra notes 82-89 & accompanying text.
223 See supra notes 104-06.
224 E.g., UCC 2-306 cmt. 2 ("Nor does such a[n output or requirement] contract lack mutuality
of obligation since, under this section, the party who will determine quantity is required to operate his
plant or conduct his business in good faith and according to commercial standards of fair dealing in the
trade so that his output or requirements will approximate a reasonably foreseeable figure.").
225 See, e.g., De Cicco v. Schweizer, 117 N.E. 807, 808-09 (N.Y. 1917) (implying (by law or
fact-it's tough to say which) that the promise induced the act at issue); Wood v. Lucy, Lady Duff-
Gordon, 118 N.E. 214, 215 (N.Y. 1917) (implying as a matter of fact that one party had made a mutual
promise to make best efforts to sell in exchange for the other's grant of exclusive rights).
226 United Nations Convention on Contracts for the International Sale of Goods arts. 14-24
(1980).
227 UCC 2-209(1) (rejecting the requirement of a consideration for modifications to contracts
covered by UCC Article 2); RESTATEMENT (SECOND) OF CONTRACTS 89(a) (1981) (recommending
enforcement of a fair and equitable modification made voluntarily to a contract executory on both sides
if the modification was prompted by circumstances unanticipated when the contract was made); Angel
v. Murray, 322 A.2d 630, 636 (R.I. 1974) (adopting RESTATEMENT (SECOND) OF CONTRACTS 89(a));
Watkins & Son, Inc. v. Carrig, 21 A.2d 591, 593 (N.H. 1941) (rejecting the requirement of a consid-
eration in a case in which the parties voluntarily modified the duties of one party to a contract when
unanticipated circumstances arose); N.Y. Gen. Oblig. 5-1103 (2000) ("An agreement, promise or
undertaking to change or modify, or to discharge in whole or in part, any contract, obligation, or lease,
or any mortgage or other security interest in personal or real property, shall not be invalid because of
the absence of consideration, provided that the agreement, promise or undertaking changing, modify-
ing, or discharging such contract, obligation, lease, mortgage or security interest, shall be in writing
and signed by the party against whom it is sought to enforce the change, modification or discharge, or
by his agent."); Sugarhouse Fin. Co. v. Anderson, 610 P.2d 1369, 1373 (Utah 1980) (enforcing a
modification on promissory estoppel grounds).
228 U.C.C 2-205.
do not require consideration in their premarital agreements,229 with written

promises by a father to provide support for a child,23 or in written agree-
ments containing a clear intent to be legally bound.231 Other exceptions
32 2
also exist.
Thus, consideration is not now and probably never was the gatekeeper
to contractual liability. The legacy left to us by sixteenth century jurists is
the lesson that those who deal with the consideration doctrine must know
its limitations, and must continue asking which promises should be action-
able and which should not, and not let the consideration or exchange doc-
trine get in the way. Given that consideration is not the gatekeeper, there is
no reason to overrule it now, but we should identify its proper place: it is
one sufficient, but not necessary, ground for an action on a promise. It is
not the only ground, nor has it ever been. Numerous others have existed
and will continue to develop. No consideration doctrine should bar that
progress.
229 E.g., TEX. FAM. CODE ANN. 4.002 (1999) ("A premarital agreement must be in writing and
signed by both parties. The agreement is enforceable without consideration.").
230 See, e.g., ALA. CODE 26-17-16 (1975); WEST'S ANN. CAL. FAM. CODE 7016, 7614
(2000); COL. REV. STAT. ANN. 19-4-123 (2000).
231 N.M. STAT. ANN. 38-7-2 (1978) ("Every contract in writing hereafter made shall import a
consideration in the same manner and as fully as sealed instruments have heretofore done."); 33 P.S.
6 (Pennsylvania); SKF USA, Inc. v. Workers' Compensation Appeal Board (Smalls), 714 A.2d 496
(Cmmnwlth. Ct. 1998) (broadly construing Pennsylvania's statute).
232 Pound, for instance, listed numerous other exceptions in 1945. Pound, supra note I, at 33-38.
A conclusive updating and expansion of Pound's list is in order.

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THE SOPHISTICATED DOCTRINE OF CONSIDERATION

The doctrine of consideration has been a favorite target of contract

RESTATEMENT (SECOND) OF CONTRACTS 71 (1981).

tions on conduct and, conversely, protections of freedom often took the

For largely historical reasons,1 3 sixteenth century judges' decisions as

Part II shows how sixteenth century judges bent or disregarded the

I. THE SUBSTANTIVE CONSIDERATION DOCTRINE IN THE LATE

As noted, students of legal history owe a debt to historians for expli-

Reciprocity, or recompense, was associated with consideration as

If recompense was given or to be given in exchange for a promise,

1. A Benefit to the Promisor, or a Charge to or Labor of the Prom-

The recompense or reciprocity principle is consistent with considera-

alone would serve.35

2. A Reciprocal or Mutual Promise

The common law courts also recognized that a reciprocal promise

promise, but it has withstood the test of time.

II. EXPANSION BEYOND SUBSTANTIVE RECIPROCITY: NEW MEANINGS

The requirement of exchange did not justify enforcement of all

A. PromissoryEstoppel Cases in Exchange Clothing

Consideration generally required "fresh cause" on each side-a recip-

A more exceptional kind of case also involved an actual allegation of

Finally, many marriage contracts may well have been gratuitous.

upon marriage, he gave it to her husband, because the daughter held no

tempted to distill the exchange doctrine clearly from earlier consideration

Cases of moral obligation also were not grounded in exchange.

consideration not induced by the promise to be non-actionable by 1568, in

90 Hunt v. Bate, Dyer, 272a, 73 Eng. Rep. 605 (C.P. 1568).

consideration. In either case, the result is remarkable, because by this late

96 See supra text accompanying notes 90-91 (discussing Hunt v. Bate).

C. The Early Precursorof Quasi-Contractand Unjust Enrichment

107 See, e.g., SIMPSON, supra note 7, at 185-96.

tion to the principle of fresh cause or recompense."' Courts, however,

1. Prior Debt-Marlerv. Wilmer to Gill v. Harewood

Some very early examples of assumpsit cases were brought to recover

supra notes I l0 & 122.

Courts' granting of liability in indebitatus assumpsit despite that objection

2. From Slade's Case to the Twenty-First Century

D. Promises To Pay a Testator'sDebt: Assets in the Executor's Hands

This form of action survived thereafter at common law,'75 though

development. For example, the contractual debts of a testator survive the

E. Assent Without Consideration

Lawyers and judges occasionally voiced concern that assumpsit did

substantively identical to Foakes v. Beer.181 In Reynolds, the plaintiff had a

181 9 App. Cas. 605 (Lords 1884).

187 Yelv. at 4, 80 Eng. Rep. at 4.

cient declaration by "intending" facts and connections.192 But in Law v.

sumed the likely facts, concluding that "the promise is grounded on an

Chief Justice Wray provides a similar example. In Marsh v.

Thus, in Goring and Marsh, as well as in Ward, judges were willing to

F. Jumping to the Forefrontof Autonomy

This study's final example of sixteenth century innovation in the as-