Page:Harvard Law Review Volume 8.djvu/112

96 96 HARVARD LAW REVIEW. acquire rights against each other by means of it, and mutuality Is one of the elements of the obligation. In the case of sealed instru- ments the affixing of the seal was the submission of the party to the legal obligation, and no inquiry into the consideration of the agreement was necessary; but in deaHng with contracts not under seal, the English courts determined very early that they would not enforce mere promises without anything given in exchange. There must be mutuality ; there must be parties who have dealt with one another, and one must have parted with something in order to acquire a right from the other. It is still undoubtedly the law that the existence of a consideration is necessary to the creation of a valid contract; and if this is so, it follows that a promise to do something for the benefit of a person is not binding without a consideration, and that if he has nothing to do with the considera- tion, he acquires no right under the contract so long as considera- tion is an element of the contract. It is only the parties to the consideration that are parties to the contract, and these alone acquire a right to sue for the breach of it. This is the general rule arising out of the nature of a contract as defined by the common law; and if in any case rights are acquired by a third person, it is necessary to look for something else than the promise to sustain the right to sue. To lay down the general rule that a third person may maintain an action upon a promise made for his benefit is to do away with one of the elements of a contract, and to introduce a new principle in creating obligations. The effect of such a rule would be to create obligations without mutuality, and to make binding promises which are not even agreements, for want of parties who agree with one another. While the rule is in fact laid down in this general form, it is not seriously contended that it is of general application. No one would say that a stranger might in every case take advantage of a contract which if performed would incidentally inure to his advan- tage. If, for instance, a tenant, desiring to improve his land for his own convenience, were to make a contract with a builder to erect upon it a building which would constitute a fixture and be- long to the landlord, no one would say that the landlord could sue the builder for not performing this contract^ Even under the law of Scotland, where consideration is not as important an element in a contract as it is in the law of England, the jus tertii, which is 1 This illustration was used by Lord Cranworth in Peddie v. Brown, Gordon, & Co., House of Lords, 1857, 3 Jur. N. s. 895.