Page:Harvard Law Review Volume 32.djvu/722

686 686 HARVARD LAW REVIEW to B a cargo which is at the bottom of the sea," and B thought "I am buying from A a cargo which is afloat." Of course, if the "agreement upon an abstraction theory" is held to, one should probably tliink there was a contract both where A was ignorant and where he was aware of the impossibility of performing, since in one as much as in the other there was a "meeting of the minds" upon an idea, viz., "cargo." This theory of agreement in the abstract does not impress one as altogether suitable for wide application in a science like the law which professes to move in and about a real world of men and affairs.^^ It would seem to the writer that such a promise, issuing forth from an agreement on an abstraction, with an actual breach certain to follow, is not one whit more valuable or likely to be the real motive of men's dealings with one another than was the making of a promise in fact, — the mere making the vocal organs to utter a succession of sounds, which in the view of Professor Ames was sufficient to form consideration, and was the essence thereof.^ More recently legal theorists are inclined to say that if a promise cannot be performed it is a nullity. Certainly, from a practical standpoint, this would seem to be good sense. Such a promise can have no present or future value. This feature, or what we might term the hopelessness of future value or advantage, distinguishes the cargo case, the married woman's case, and the A B case from those cases where an infant exchanges promises with an adult. It seems to be now generally agreed that in this sort of transactions there is no real consideration given by the infant.^ But while from a strictly legal and technical point of view this seems indubitable, on the other hand it seems equally indubitable that in the infant's promise there is at least a hope of value or advantage in the future. He may perform his promise, and that fact alone is sufficient to distinguish it from a case like ours. There is, then, something which is in the nature of consideration, at least, in the infant's agreement, although there is no mutuality of obli- gation.^^ This possibility of the final rendition of value also dis- tinguishes from ours a case where A has by fraud induced B to ^ Holmes, The Common Law, i, 36. 28 See WiLLisTON, in 27 Harv. L, Rev. 528, 529; Ashley on Contracts, § 43. See also Ballantine, in 28 Harv. L. Rev. 128, 129. " Professor Ballantine, 11 Mich. L. Rev. 434,
 * 13 Harv. L. Rev. 31, 32.