LORD MANSFIELD-WILLIAM MURRAY (1705-1793)

Lord Mansfield was educated at Westminster, Christ Church, Lincoln's Inn, and Oxford. In 1730 he was called to the bar. He took an active part in politics as well as in the law, was a leader in the House of Commons, and during this time there defended the prerogative of the king. In 1783 he was speaker of the House of Lords. Prior to that, in 1756, he was appointed to the position of Chief Justice of the King's Bench and created Baron Mansfield. He was made Earl of Mansfield in 1776.

The great reputation of Lord Mansfield rests chiefly on his judicial career. He has always been recognized as the organizer of mercantile law which he found in a chaotic condition, leaving it in a condition equivalent to a code. He was pre-eminently one of England's greatest jurists.

49.

50.

RATIFICATION

PROVISIONS OF THE STATUTE OF FRAUDS

1. Promises of Executors and Administrators

2. Debt, Default, and Miscarriage

(a) Nature of Agreement

3. Agreements in Consideration of Marriage

4. Agreements for the Sale of Lands

5. Agreements not to be Performed Within One Year 6. Sale of Goods

(a) Effect of Non-Compliance

RECAPITULATION

51. QUESTIONS

52. DECISIONS BY THE COURTS

41. Introduction. In law every agreement, or contract, as it is usually called, must include something, capable of being reduced to money value, that passes from one party to the other. In the eye of the law, there must be in every agreement a benefit to the promisor or a detriment to the promisee. It is not necessary that the exchange of values should be equal, that being a matter of opinion between the parties themselves. The law does not attempt to enforce against a person a promise of a gift or any promise of a similar nature.

1. Definition. The consideration is the value attached to the thing to be done or left undone. This consideration is sufficient if it consist in "some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other." Again, the benefit need not necessarily pass to the party making the promise, but may pass to a third party. A offered to work for B for one month for $100.00, to which B agrees. The $100.00 is the consideration.

If A makes a promise to B for the benefit of C, which is accepted by B, C may have action to enforce the acquired rights.

42. General Rules. 1. Requirements: (1) Necessity of consideration when contract is not under seal. (2) Adequacy of consideration. (3) Legality of consideration. (4) Present or future, executed or executory, but not past.

2. Necessity. Every man is bound to fulfill his agreements, but the law does not lend its aid in enforcing a contract or agreement that is not founded on a consideration. It is one of the essential elements and is that which marks the difference between a gift and a contract. A gift is never presumed. A promises to B a certain valuable picture. B cannot enforce this promise as it is not founded on a consideration. The court would say that B has not parted with anything of value or been to any inconvenience. On the other hand, A promises to deliver the picture to B for $5 and B accepts. This is a contract. B may enforce this agreement upon making a tender of the money. Each has

promised to part with something of value, which is the considera

tion.

3. Adequacy. The value of the consideration is not considered so long as a man gets what he has bargained for. Courts do not inquire into the equality of the bargain. The question is, "Was there a consideration, something of value given, or a detriment sustained?" The adequacy of the consideration is left entirely to the parties to the agreement; otherwise it would be "the law making the bargain instead of leaving the parties to make it."

4. Promise Without Consideration. A bare promise not supported by a consideration will, as was said, not be enforced by the courts. Moreover, if the thing promised has been carried out with a knowledge of both parties, the courts will not assist in enforcing the return of the thing promised. A may promise to give B a suit of clothes, or a father may promise his son a deed to a piece of property at his majority. These are bare promises and the courts will not assist B or the son in enforcing compliance. Moreover, if the clothes have been delivered, or the deed has been delivered, the givers will not be allowed to compel a return of the property or demand payment therefor. But if A agrees to sell to B a horse for $100.00, and B accepts and pays the money to A, and if, when he calls for the horse, it develops' that the horse was dead at the time of the sale, then this is deemed a failure of consideration, and the money received must be returned. When the promise or agreement is to be carried out in the future, it is said to be an executory agreement. When the delivery has been made, it is said to be an executed agreement. If there is no consideration the first is not enforceable, but the second, being completed, is binding.

Exception. If a party gives away his property without a consideration or for a grossly inadequate one, and by so doing is unable to pay debts already contracted, his creditors have a right to have the transfer set aside. A, who is about to fail in business, transfers a large amount of his property to B in order to keep it from his creditors. So far as A and B are concerned the transfer will stand, but the creditors who are thus deprived of payment may recover enough of the property from B to satisfy their claims.