Page:Harvard Law Review Volume 12.djvu/551

531 TU^O THEORIES OF CONSIDERATION. 53I Foakes v. Beer is the type, as an exception contrary to principle, but sanctioned by the highest judicial authority in England and the United States. Bearing in mind that the decisions in Callisher v. Bischoffsheim and Shadwell v. Shadwell accord with the sentiments of business men, and that it is in the highest degree improbable that the doc- trine of those cases will ever be reversed by the court or over- thrown by statutes in the jurisdictions in which it has once been adopted ; and remembering, on the other hand, that the doctrine of Foakes v. Beer, originated in misconception, is repugnant alike to judges and men of business, is not applied consistently to all the cases fairly within its scope, has been a source of highly arti- ficial and technical distinctions, has been changed by statute in India and in ten of our States, and is likely to be generally super- seded by similar legislation, the writer does not hesitate to choose the second of the above alternatives, and to define consideration as " any act or forbearance given in exchange for a promise," with this qualification, however, that, for the present, by an unfortunate but established anomaly, a creditor's promise in consideration of the payment of the whole or a part of the debt by his debtor is invalid. This definition unquestionably makes for individual free- dom of contract and for logical simplicity in the law. It is believed, also, to be a just deduction from the decided cases. James Barr Ames. 69