Page:Harvard Law Review Volume 8.djvu/53

37 SUCCESSIVE PROMISES OF SAME PERFORMANCE, Z7 be sufficient without proof that the willingness of the other party to the contract made rescission possible, and therefore refraining from it a detriment. But the great difficulty with the theory is that it does not fit the facts. It may well be that one of the parties to the second contract is not aware of the existence of the earlier contract, and, in any event, a rescission of the earlier contract might obviously be made without liability on the second contract if the performance promised was actually carried out. If that be done, the second promisor cares nothing whether the origi- nal contract remains in force or is abrogated.^ It may, however, be argued that though performance of the prior contract be not a good consideration because unless it ap- pears that both parties to that contract were willing to rescind, no detriment to the promisee can be found, yet a promise of such per- formance is a good consideration because, owing to the possibil- ity of a rescission or other excuse for not carrying out the prior contract, performance of the second contract when the time for performance comes may be a detriment. This is the strongest argument that can be made in support of the second contract. But it goes too far. In every case where the promisor is already bound to do the thing promised, it is possible that, before the time the performance arrives, the earlier bond may be released by change in the law or otherwise. The truth is that the law deals with the question, and as a practical matter must deal with the question, on the supposition that the obligations binding the par- ties to-day will continue to bind them, and hence the second prom- ise is nudum pactum. There is but one case in which the court takes the distinction between the validity of a unilateral and a bilateral contract put forward by Sir Frederick Pollock and Professor Langdell, though afterwards withdrawn by the former. In Merrick v. Giddings,^ on the authority of these writers, the distinction was asserted. Since Anson's criticism of this view and Pollock's withdrawal of it from the later editions of his treatise, Merrick v. Giddings is not likely to be followed, and certainly it is of doubtful expediency to establish so delicate a distinction between bilateral and unilat- 1 It must be remembered that English text-writers labor under the disadvantage of feeling bound to support and furnish some explanation of the decisions in Shadwell v. Shadwell and Scotson v. Pegg. If it were not for this, it is quite possible that the matter would be discussed in another fashion. 2 I Mack. (D. C.) 394,