Page:Harvard Law Review Volume 32.djvu/719

683 IGNORANCE OF IMPOSSIBILITY AS TO CONSIDERATION 683 something you did not ask for." Back of this attitude of the courts it is hard to avoid seeing as its more or less tmconscious motive and source, perhaps, a certain indignation at the defendant's wrongful conduct, and a feeling that he is not in a position to object to being harnessed in a contract, since at any rate he is the author of his own woes. Doubtless such a view is justified as far as the defendant personally is concerned, but what about legal theory? Does an immoral man cease in the eyes of the law because of his immoral tendencies to be capable of setting his personal estimate on the relative values of things? Can he, in other words, no longer lawfully know his own mind? Of course he cannot be allowed to carry out his project, but the question that concerns us is merely this : Is it good legal theory to say that the defendant is not only to be so prevented, but that also he is guilty of the breach of a contract made upon a consideration he did not ask for, but which the law provided, in order to fix a contract liability upon him? This appears to be undesirable. "The consideration is the matter accepted or agreed upon as the equivalent for which the promise is made."^® In Meyer v. Eaworth ^^ the facts were that a merchant had sold goods to a married woman supposing her to be single. Later he sued her in assumpsit, relying on her promise to pay for the goods made by her subsequent to her husband's death. It was held there was no consideration for her second promise, since the first promise (made during her coverture) to pay for the goods was wholly void. Professor Williston says in this connection: "A promise which is void is insuflficient consideration, and the cases indicate no inquiry on the part of the court whether the party giving a promise in exchange for the void promise knew or did not know the facts which made void the promise he received." ^^ In a note to the same passage the same writer suggests, "If lack of knowledge of these facts made a difference, it might be urged that mistake rather than lack of consideration was the reason for the invalidity of the bargain." If the promisee's " unawareness " of the invalidity of the other's promise does not form consideration and give rise to a contract " Leake on Contracts, 6 ed., 435. " 27 Harv. L. Rev. 517. »« 8 A. & E. 467 (1838).