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Executed and past Considerations Discussed



1. An executory Consideration refers to a future act; thus, a promise for a promise constitutes a contract upon ex ecutory considerations. Either may perform, or offer to perform, and thus bind the other, to fulfill or com pensate for the breach.

2. An executed consideration arises where one of two parties has, either in the act which amounts to a proposal, or the act which amounts to an acceptance, done all that he is bound to do under the contract, leav ing an outstanding liability on the other party only. (Anson on Cont. p. 90.)" 3. "A past consideration is some act or forbearance in time past by which a man has benefited without thereby incurring any legal liability. If afterwards, whether from good feeling or interested motives it mat ter not, he makes a promise to the person by whose act or forbearance he has benefited, and that promise is made upon no other consideration than the past benefit, it is gratuitous and cannot be enforced; it is based upon motive and not upon consideration." (Anson on Cont. p. 92; Osier v. Hobbs, 33 Ark. 215; Ludlow v. Hardy, 38 Mich. 69o.) The exceptions to the rule that a past consideration is, in effect, no consideration, are as follows: r. Where the past consideration was given or rendered at the re quest of the promisor, or the circumstances and bene ficial nature of the consideration implied a request, such consideration will support a subsequent promise. (Pool v. Homer, 64 Md. 143; Oatfield v. Waring, 14 Johns. 188; O'Connor v. Beckwith, 41 Mich. 657.) 2. Where a person has voluntarily done what another was legally bound to do; this, though a past consideration, is sufficient to uphold an express promise to recom pense such voluntary act. This exception is founded upon the rule that a subsequent ratification of a volun tary act amounts to a previous authority. (Gleason v. Dyke, 22 Pick. 393.) 3. Where a person has received a benefit in the past, but by rules of law, incapacity to contract, or lapse of time, his promise then made is not enforceable against him, such promise may be revived when the law is changed or the incapacity removed. The principle being "that where the consideration was originally beneficial to the party promising, yet if he be protected from liability by some provision of the statute or common law, meant for his advantage, he may renounce the benefit of that law; and if he prom ises to pay the debt, he is then bound by the law to per form it." (Parke, B., in Earle v. Oliver, 2 Exch. 71.) We have seen (Section 443, Ante) that the doctrine of moral obligation as a consideration covers these cases, and so some cases hold. (Stafford v. Bacon, 23 Wend. 384.) But later cases abandon the doctrine of moral obligation. (Bishop on Cont., Sec. loo.)

consideration, promise, act and law