tion for each other." What I have endeavored to show, however, is that the element of consideration or reciprocity must be found not in the actual performances nor in the promises but in the promised performance, i. e., in the nature, relation, and future value of the contemplated performances.

Like many legal mottoes and catch phrases, the easy and timehonored formula that promise is consideration for promise is but a legal "bromide," which is ordinarily used as a substitute for thought, to disguise a lack of analysis under vague and specious words. It is submitted that "promise" here means neither the expression of assent or agreement, the promise in fact; nor the obligation which results therefrom; nor the actual performance; but the promised performance, that is, the prospective value bargained for. Any mutual promises which contemplate the possibility of a required performance on each side constitute a contract, since they involve mutuality or reciprocity in the things promised. If a promise is made in view of a benefit to be received, and if something of possible value is promised in return, that is sufficient consideration. This interpretation of terms does not involve any serious upset in received legal terminology, and is in accordance with the practice of the courts, who according to Professor Williston in discussing the sufficiency of consideration have always "considered the character of the things promised."

It is doubtless true that "parties to a bilateral contract always contemplate that performance on one side is an exchange or price for performance on the other." This is the basis of implied conditions or the dependency of the duty of performance upon the counter performance, according to Professor Williston.12 But I do not find that reciprocity which furnishes the consideration or source of obligation in the actual performance (which may never occur), but in the promised performances, the reciprocity of undertakings in the terms of the bargain.

Take the case put by Professor Williston as not being covered by my theory: "If A. promises B. to guarantee a debt of $100 due to B. from X. in return for B.'s promise to A. to guarantee

11 27 HARV. L. REV. 504, n., commenting on my article in 11 Mich. L. Rev. 432. A similar misinterpretation was also fallen into by Dean Ashley in his article in 26 HARV. L. REV. 429.

12 Wald's Pollock on Contracts, pp. 323, 324, n. 8.

payment of $500 due A. from Y., the performances are in no sense in exchange for one another, or the consideration of one another, and yet there is a contract.

"Matters may so turn out that either party alone may be called upon to perform, or that both parties, or neither party, may have to pay. The promises are exchanged, though the performances are not expected to be; and even though the chance falls out that both parties have to pay, their payments are not in exchange for one another. They never proposed to exchange $100.00 for $500.00. The facts supposed are suggested by Christie v. Borelly, 29 L. J. C. P. N. S. 153 (1860)." 13

This is all quite true, but I do not see that it militates against the theory of consideration proposed. The reason the law regards the agreement as binding is that it is a non-gratuitous transaction involving some degree of reciprocity or mutuality from the standpoint of the parties, not because there is an exchange of present values. I submit that the assumption of a requirement of present value received in bilateral contracts is as unnecessary to the theory of consideration as Professor Williston himself concedes Langdell's assumption of a present detriment to be. From what is this premise derived but from the discarded analogy of unilateral contracts?

Take the simple case of a bet which illustrates the situation in all aleatory or risk contracts. A. bets ten dollars Yale will win; B. bets ten dollars Harvard will win. Under no possibility here can there be an exchange of performances; but is it a case of benevolence, of gratuity, on either side? No, the mutuality or reciprocity is obvious. Why? Because of an exchange of values in promises or obligations? No. It is because the bargain contemplates possible performance on either side, and because each side stands a chance to win. That is why it is not a one-sided gratuity, a case of "heads I win, tails you lose." Performance is not to be given in exchange for performance, but the possibility of performance on one side is undertaken in exchange for the possibility of performance by the other side. Neither promise is gratuitous, although neither promise is given for value received, but on credit for the chance of value to be received.

To paraphrase the argument of Professor Williston in speaking

13 27 HARV. L. REV. 504, n.

of conditional promises, and to apply it to the things promised, - it is not necessary in order that a thing promised furnish reciprocity, that it will certainly prove detrimental to the promisor or beneficial to the promisee. The possible or speculative value of a contingent performance is a sufficient consideration. The condition upon which performance is to take place may not happen, but the possibility that the condition may take place involves a chance of benefit, which is sufficient to furnish reciprocity, and make the thing promised valuable consideration. The reciprocity is as real where the contingency has already happened, and is unknown, — for example, insurance of a ship lost at sea, as it is in the case of a risk on a future event. Where the bargain, so far as known, may turn out to be beneficial to either party, there is mutuality. The value legally sufficient to support a promise may be a present one or a future one, a certain one or a contingent one, provided that the contingency is independent of the choice of the promisor, according to the terms of the undertaking.

The theory that an executory consideration is some kind of value received, and that a binding promise is the quid pro quo or value given for a promise, logically requires that there should be absolute mutuality of obligation, so that each party will have an action to enforce the counter promise. As a federal court puts the theory: "A promise is a good consideration for a promise. But no promise constitutes a consideration which is not obligatory upon the party promising. It must bind the promisor, so that the promisee may maintain an action for its breach, or it is without legal effect and void." 14

Professor Williston accordingly lays it down in his more recent article, that a promise is of no value unless it both gives assurance of the performance of something of possible value, and unless it will also be binding. A promise which is void is therefore insufficient consideration. Professor Williston candidly admits, however, that "contracts, where one promise is voidable or unenforceable, present some difficulty with regard to the law of consideration." 15 ." 15 Should one not say rather with regard to this theory of the law of consideration, which seems to break down in these crucial

14 Cold Blast Transp. Co. v. Kansas City, B. & N. Co., 114 Fed. 77 (1902). 15 27 HARV. L. REV. 507.

cases? It is usually said that a voidable promise of an infant, for example, is regarded by the law as something of value.16 But as Professor Williston admits, "The promise of an infant, an insane person, or one whose promise is performable only at his option, is not a thing of such value, whatever may be the nature of the thing promised, that the law would ordinarily regard such a promise as sufficient consideration." 17 A promise to perform "if I choose," or "if I conclude to ratify," or "unless I avoid or cancel," would be insufficient as lacking mutuality.1

18

Many instances of unenforceable promises which, however, do not invalidate contracts might be given. Although a plaintiff may not be liable to an action on a contract because of the Statute of Frauds, that does not destroy the consideration, or let off the party who has signed the memorandum.19 There are one or two decisions the other way, but they are against the overwhelming weight of authority.20 Similarly there is no difficulty about consideration although the contract is entirely unenforceable ab initio by one of the parties on account of insanity, drunkenness, fraud, or illegality. In all these cases and others it may be binding on one party and not on the other.21 Would these cases not suggest that there is a distinction somewhere between lack of consideration and lack of mutuality of obligation, and that lack of mutuality in the legal effect of promises is immaterial?

Apparently the greatest, if not the only, function of the orthodox doctrine that only a binding promise is valuable consideration, is to explain why the bilateral contract of a person sui juris with a married woman is entirely void, i. e., not enforceable even against him. The whole justification of the literal interpretation of the formula that a promise is consideration for a promise, is therefore in effect placed on the shoulders of married women. But is the voidable promise of an infant of more value to the adult party than the void promise of a married woman? The infant's promise is not merely of zero value, it has a minus value. It is not an asset,

16 Williston, Sales, § 12.

17 27 HARV. L. REV. 528.

18 Rehm-Zeiher Co. v. F. G. Walker Co., 156 Ky. 6, 160 S. W. 777 (1913).

19 Justice v. Lang, 42 N. Y. 493, 521 (1870).

20 Houser v. Hobart, 22 Idaho 735, 127 Pac. 997, 43 L. R. A. N. S. 410, n. (1912). 21 San Francisco Credit Clearing House v. MacDonald, 18 Cal. App. 212, 122 Pac. 964 (1912).

but a liability, as the adult is bound and the infant is not until he ratifies. According to some courts, at least, if a married woman contracts to buy on credit and executes a note for the purchase price, she may or may not proceed with the contract she has made as she may elect, and the person contracting with her cannot refuse to carry out the agreement if she is willing, merely because she is a married woman.2

22

Would it not be better, therefore, to explain the married woman cases simply as being very logical deductions by some courts from a mistaken premise that want of mutuality of obligation is a defense to a contract? Admitting that the married woman could sue the other party after performance or if she furnishes other consideration than a promise,23 this single instance is scarcely sufficient to form the corner stone of the entire theory of executory consideration, and to afford the premise from which it purports to be deduced. It might have been fair and just for the law to add to the consideration requirement a rule calling for mutuality of legal obligation in all bilateral contracts. Yet in spite of language used by courts and text writers to this effect such has not been the policy adopted by the common law save in one or two sporadic instances. "Illusory promises," though usually explained in terms of mutuality of obligation, can only be harmonized with the voidable-contract cases by discriminating lack of reciprocity of undertaking from lack of mutuality of legal obligation. Ultra vires contracts are sometimes mentioned in this connection, but these contracts are to be explained as being void rather on grounds of public policy 24 than for lack of consideration. The treatment of ultra vires contracts would seem to be anomalous, confused, and exceptional, and to furnish small material for argument as to other topics.

Professor Williston is forced by his theory to brush aside all the cases of voidable contracts as anomalous and hopeless exceptions

22 Pitts v. Elser, 87 Tex. 347, 28 S. W. 518 (1894); see also Frazier v. Lambert, 115 S. W. 1174 (Tex. Civ. App., 1909); Mansley v. Smith, 6 Phila. 223 (1867); Dickson v. Kempinsky, 96 Mo. 252, 9 S. W. 618 (1888).

23 Chamberlin v. Robertson, 31 Ia. 408 (1871); Dickson v. Kempinsky, 96 Mo. 252, 258, 9 S. W. 618 (1888); McQuitty v. The Continental Life Ins. Co., 15 R. I. 573, 578, 10 Atl. 635 (1887); Tuttle v. Rembert, 2 Strob. (S. C.) 270 (1847); Jackson v. Rutledge, 3 Lea (Tenn.) 626, 632 (1879).

24 Copper Miners v. Fox, 16 Q. B. 229, 237 (1851), cited by Ames, 13 HARV. L. REV. 34.