Page:Harvard Law Review Volume 1.djvu/58



By J. I. Clark Hare, LL D. Boston: Little, Brown & Co. One volume. 8 vo. Law Sheep. 714 pages.

This book will not satisfy the wants of the case hunter, but to those interested in the study of law as a science it cannot be too highly recommended. Nowhere do we remember to have seen the development of the law of assumpsit so satisfactorily explained as here. That it was originally regarded as an action of tort is well known, but that for acts of omission the promisor was originally held liable as for a deceit practised on the party furnishing the consideration has not been generally known, and for a very clear demonstration of the latter theory we are indebted to Mr. Hare.

Quære, however, if, viewing the law of assumpsit as one of contract, the author is not influenced too much by the notion of injury or detriment suffered in fact by the party performing the consideration. For example, in discussing the law of gratuitous bailment, he states, and we think correctly, that the liability of the gratuitous bailee is not a liability for breach of contract, but he gives as reasons: 1. That the bailment is of no benetit to the bailee. 2. That the bailment is not a detriment, but a benefit, to the bailor. But is he not here using the word “detriment” in its popular, rather than in its legal, sense? Regarding detriment as the surrender of a legal right, the difficulty establishing a contract on the part of the gratuitous bailee is to find as a fact that he requested the bailor to exchange the possession of the property for his promise.

We are glad that the author takes occasion to distinctly repudiate the notion that a contract under seal implies a consideration, and states the law as it is, that none is needed. We regret that he has not dealt with the law of negotiable paper in the same way, for the notion that a bill or note delivered as a gift to the payee cannot be enforced by him is modern (see 2 Bl. Com., 446), and at the present day a consideration, as that word is used with reference to a simple promise, is not required in order that the payee of negotiable paper may recover thereon.

Those who have struggled with the phrases “executed and executory considerations” will rejoice that the author has classified contracts as unilateral and bilateral; but we cannot agree with him when he says that, because our law requires a consideration for a promise, the terms are less applicable to the common than to the civil law, for in neither system is the promisee in a unilateral contract ever bound, and in any system of law in a bilateral contract each party is bound. In fact, here, as elsewhere, the author, in distinguishing between the common and the civil law, is inclined, we think, to lay too great stress on the fact that a consideration is required in the one and not in the other. For example, in support of the prevailing view, that a bilateral contract is complete on the mailing of the letter of acceptance, the suggestion is made that this view is correct, for the reason that the question ts to be treated as one of performance, and is not to be tested by the rules applicable to promises. At the same time he recognizes that in a bilateral contract each party is bound by a promise, and that the contract is binding because the one promise is the consideration for the other (see page