Comment On The History of The Consideration Doctrine

B.
Consideration 103
man, but I don’t think you can count on that $5,000 from me. I’m devoting
my energy and my finances to some new business ventures of my own.” At that
point, would the uncle have had any legal obligation to his nephew? What
legal remedies — if any — might have been available to young Will?
(c) It’s 2015, and young Will Story, aged 21, has a serious drug problem.
His loving Uncle Bill promises to pay Will $5,000 on his 25st birthday if Will
abstains from using cocaine for the next four years. Will spends four years
clean and sober, with no use of drugs or alcohol, and asks Uncle Bill for the
money. Perhaps Uncle Bill will pay gladly, but if he doesn’t, should Will be able
to sue him for the money?
2. Historical background. As we noted in the introduction to this section,
the test for consideration employed by the court in Hamer is not the only one
a court might use; the Restatement uses a “bargained-for exchange” analysis,
which we will address below. The “benefit/detriment” test used in Hamer has
deep roots in Anglo-American contract law, however, as the following Com-
ment attests.
Comment: History of the Consideration Doctrine
The origins of the modern consideration doctrine can be traced back at

least to thirteenth-century English law. At that time, the English courts did not
yet recognize our modern concept of breach of contract. They did, however,
enforce legal rights that were similar to those arising under contracts today.
In particular, the English courts allowed two causes of action of a contractual
nature: covenant and debt. Each of these had its own particular limitations.
The action of covenant was available only to enforce a promise that was
made in writing and under seal. The “seal” at this stage of legal development
was exceedingly formal: Typically, wax was melted onto a document and,
before it cooled, was impressed with a signet ring or other device. The sealed
document was often referred to as a “deed,” or “specialty.” Such documents
were seldom employed in informal, day-to-day business affairs, so the action of
covenant had limited utility for enforcing promises made in such transactions.
(The term “deed” is used today to refer to a document that conveys an interest
in realty, typically a formal, “legalistic” document.)
The action of debt had more practical importance, because it was available
to enforce both formal promises (through the action of debt “sur obligation”)
and informal ones (debt “sur contract”). The debt action had another limita-
tion of its own, however: It was not available unless the plaintiff claimed that
the defendant owed him a definite or certain sum of money. This limitation
did not prevent the action of debt from being used to enforce informal prom-
ises, such as loans, purchases of goods, and agreements to pay for services ren-
dered, so long as the plaintiff could claim a definite sum and could establish
that the defendant had received a quid pro quo for the asserted debt.
Both covenant and debt were effective remedies for the cases in which
they were available, but neither provided a useful remedy for the improper
performance of an informal promise. For instance, suppose a nobleman took
a piece of heirloom silver to a silversmith for repair, and the smith did the work
improperly, damaging it further. The customer could not seek a remedy in the
104 Chapter 2. The Basis of Contractual Obligation
action of covenant, because the parties would not have used a sealed instru-
ment for such a routine transaction. On the other hand, the action of debt
would not lie either, because the damage caused by the defective performance
was not a definite sum.
In addition, the action of debt suffered from two other limitations. First, it
was not available if the debtor had died in the meantime. (Unlike today, when
ordinary money debts customarily survive as obligations enforceable against a
decedent’s estate.) More importantly, the court rules of the time permitted the
defendant in a debt action to have the benefit of a process known as “wager of
law.” Under this procedure, the defendant could appear in court with “oath-
helpers” (usually eleven in number), each of whom would swear that the defen-
dant was not indebted to the plaintiff. If the defendant successfully performed
this ceremony, he won his case. Obviously, the less scrupulous the debtor (and
his friends), the greater the likelihood that the debt would go uncollected.
Because of these shortcomings, the actions of covenant and debt were
gradually replaced during the fifteenth and sixteenth centuries by a new form
of action, called “assumpsit.” Assumpsit eventually became the general rem-
edy for breach of promise. Like most changes in the common law system,
this one came incrementally. In the fourteenth century, the English courts
recognized the action for damages resulting from a wrongful act (what today
we would call a “tort”). This action, known as “trespass,” originally applied to
public wrongs, such as breach of the peace. Later, in the form of “trespass on
the case,” it was extended to apply to private wrongs as well. Thus, an action in
trespass on the case would lie for the nonperformance of an obligation volun-
tarily undertaken (such as the silversmith’s promise of repair). The action in
such cases came to be known as assumpsit, because the pleading alleged that
the defendant had “assumed” — that is, voluntarily undertaken — the obliga-
tion of performance.
By the year 1400, it was well established that an action of assumpsit could
be used to recover damages for improper performance of a voluntary obli-
gation. The English courts, however, distinguished between “misfeasance”
(improper performance) and “nonfeasance” (failure to render any perfor-
mance at all). Assumpsit was only available to remedy the former. For non-
feasance, the plaintiff was remitted to an action of covenant, where he could
recover only if he could produce a specialty. Throughout the fifteenth century,
a number of exceptions to this rule accumulated, permitting assumpsit to be
used for various types of mere nonfeasance. By the first quarter of the six-
teenth century, the rule disappeared entirely, and the plaintiff generally was
permitted to recover for either misfeasance or nonfeasance without producing
a sealed document. Assumpsit had completely superseded covenant.
The use of assumpsit instead of an action for debt had obvious attraction
for the unpaid creditor, because of the procedural advantage enjoyed by the
defendant in a debt action. Defendants’ attorneys therefore objected strenu-
ously when plaintiffs attempted to bring an assumpsit in any case where an
action of debt would be available. This heated dispute was ultimately resolved
by the Exchequer Chamber in Slade’s Case, 76 Eng. Rep. 1074 (1602), which
held that a plaintiff might elect between assumpsit and debt in any case
where both would lie. The natural consequence was that assumpsit effectively
replaced debt as well.
B. Consideration 105
Once assumpsit had taken over the field of contractual obligation, the
English courts faced another question: What should be its scope? As we
saw above, both covenant and debt had been limited by specific require-
ments — the production of a sealed instrument, and the obligation to pay
a sum certain, incurred in exchange for a quid pro quo. Assumpsit did not
have these limitations, but it did develop limitations of its own. These came
to be expressed in the doctrine of consideration, which — like the action of
assumpsit itself — developed incrementally. As assumpsit evolved, it became
customary to plead the factors that the defendant had considered in making
his promise. Over time the process of pleading such “considerations” grew into
a formal requirement. Case decisions gradually outlined the kinds of consider-
ation for which an action in assumpsit would lie. The concepts of detriment to
the promisee and benefit to the promisor, which were used quite early, came
to represent the paradigms of consideration. The historical link is not clear,
but at least it can be said that the “detriment” suffered by the promisee has a
resemblance to the harm suffered by the plaintiff in the early trespass action,
while the “benefit” to the promisor is akin to the quid pro quo received by
the defendant in a debt action. Even today, courts will use these concepts to
describe the factors in a case that justify the finding of sufficient consideration
to support liability for breach of a promise. Accounts of the development of the
consideration doctrine can be found in the writings of many legal historians.
One in-depth exploration is contained in Alfred W. B. Simpson, A History of
the Common Law of Contract (1987).
Pennsy Supply, Inc. v. American Ash Recycling Corp. of

Pennsylvania
Pennsylvania Superior Court
895 A.2d 595 (2006)
Before: Joyce, Orie Melvin and Tamilia, JJ.

Opinion by Orie Melvin, J.:
1. Appellant, Pennsy Supply, Inc. (“Pennsy”), appeals from the grant
of preliminary objections in the nature of a demurrer in favor of Appellee,
American Ash Recycling Corp. of Pennsylvania (“American Ash”). We reverse
and remand for further proceedings.
2. The trial court summarized the allegations of the complaint as
follows:
The instant case arises out of a construction project for Northern York High School
(Project) owned by Northern York County School District (District) in York County,
Pennsylvania. The District entered into a construction contract for the Project with a
general contractor, Lobar, Inc. (Lobar). Lobar, in turn, subcontracted the paving of
driveways and a parking lot to [Pennsy].
The contract between Lobar and the District included Project Specifications for
paving work which required Lobar, through its subcontractor Pennsy, to use certain
base aggregates. The Project Specifications permitted substitution of the aggregates
with an alternate material known as Treated Ash Aggregate (TAA) or AggRite.

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B.

Comment: History of the Consideration Doctrine

The origins of the modern consideration doctrine can be traced back at

Pennsy Supply, Inc. v. American Ash Recycling Corp. of

Before: Joyce, Orie Melvin and Tamilia, JJ.

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