Page:Harvard Law Review Volume 32.djvu/716

680 68o HARVARD LAW REVIEW two reasons: (i) A is already married, and (2) B knows that fact. One is, it appears, just as much a factor as the other. If regard were had solely to the matter of legal impossibility, one might rather naturally think the first of the given reasons amply sufficient by itself, and the second superfluous or irrelevant. In point of logic, at any rate, any given thing which is impossible in fact would seem not to be less so because of the belief or unbelief as to its possibility on the part of one attempting to deal with it. It matters not whether the impossibility is physical or legal: One may think that he can tread on air, or commit a legal murder, but his thought about the matter would have no influence to change the outcome of his attempt to do either. And it would seem to be true that A's promise to B to do either of these things would be of precisely equal value to B, whether A thought it possible to execute either feat, or impossible. In other words, you have on the one hand a state of mind, a subjective thing, and on the other a state of fact, an objective thing; and the whole pur- pose of this article is to cast a doubt, at least, on the propriety of allowing the former to count as consideration, when the considera- tion asked for is the latter. In order to show that this is done, let us take the case suggested by the opening paragraph — a case just the opposite of the one we have been considering — one where the promisee is unaware of the legal impossibility involved, and where consequently courts and writers on the law seem to be equally at one in holding that there is a contract.^ Two cases illustrate this doctrine: Wild v. Harris ' and Millward v. Littlewood.^ In both cases a married man promised to marry an unmarried girl who was ignorant of his existing status, in return for her promise made in good faith to marry him. In each case, the girl suing him in assumpsit for breach of promise was allowed to recover. In the former of the two cases it was urged in defense that no consideration for the defendant's promise had been shown, since the plaintiff on her own part could not perform her promise to marry defendant; and it was also said that a consideration is insufficient, if its performance be utterly impossible. Counsel also suggests that defendant might have « See page i, note i. See also Williston on Sales, § 663, note 4. » 7 C. B. 999 (1849). " 5 Exch. 775 (1850); 2 Williston, Cases on Contracts, 552.