it is not the moral consideration that A should pay which supports the promise. It is the consideration which arises from A's promise to do what he is not bound to do, namely, to pay a debt discharged in bankruptcy. Analogous to this case are contracts by which parties agree to pay debts which have been barred by the Statutes of Limitations. Many statutes provide by their terms that a written promise to pay extends the time in which the debt will be barred.9

8

69. Unreal considerations.— A consideration which is impossible or so vague in terms as to be practically impossible will be treated as unreal. As regards vagueness, the principle is id certum est quod certum reddi potest (that which can be made certain, is certain). Thus, a contract to sell all the straw one has to spare, not exceeding three tons, is not void for uncertainty, as the quantity to be sold can be determined.10 But where A agreed to work for B for such remuneration as B deemed right, the court refused to enforce the contract because of its indefiniteness.11

70. Mutuality of obligation.-There are many agreements in which one party has become bound but the other has not. Such engagements lack what is called mutuality, more properly termed mutuality of obligation.12 In such a case there is an unenforcible agreement. Thus, where an apprentice agreed to 7 Dusenbury v. Hoyt, 53 N. Y. 521.

8 Kent v. Rand, 64 N. H. 45.

9 See state statutes.

10 White v. Hermann, 51 Ill. 243.

11 Taylor v. Brewer, 1 M. & S. 290 (Eng.).

12 To distinguish from mutuality of remedy, a question for equity jurisprudence. See subject, EQUITY.

remain a certain length of time, but the master did not promise to instruct him, the agreement lacked mutuality.

The most frequent example of a want of mutuality is the case where A promises to sell B such goods as he may "desire" or "wish" during a certain period of time. Here, B has bound himself to nothing, for he is not required to desire any goods; whereas, if he does desire some goods, A should furnish them. There is therefore no consideration, for B has incurred no legal liability. Consequently, it is said that an enforcible contract requires mutuality of obligation.13

The correct view is that there is no agreement, but simply an offer which may be accepted by giving an order until such time as the offer is actually withdrawn or until it expires by lapse of time.

On the other hand, where A's offer is to supply B with all the coal he may "require" or "need" during a certain period of time, B is bound to the extent of having to purchase such coal from A. It may be that he will purchase no coal, but if he purchases any, it must be from A. Otherwise, he will be liable to A in an action on the contract.14 In short, where B agreed to purchase what he "desired," he might purchase from another than A; where he agreed to purchase what he "needed," he bound himself to purchase from A.

An option contract whereby, for example, A, for a consideration of $1, agrees to keep open for ten days

13 Minn. Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85, 43 N. E. 774; Joliet Bottling Co. v. Joliet Citizens Brewing Co., 254 Ill. 215, 98 N. E. 263, LEADING ILLUSTRATIVE CASES.

14 Nat'l Furnace Co. v. Keystone Mfg. Co., 110 Ill. 427.

an offer to sell B his house, binds A to sell the house if B accepts, but does not bind B to purchase. Such options are enforcible in law courts, and where there is a consideration, equity will usually grant specific performance. But in some cases it is said the option lacks mutuality. As a matter of reasoning, however, the option is a contract to keep an offer open in consideration of $1. This, in fact, is the situation in any unilateral contract, wherein the consideration is executed on one side. B has performed his part of the agreement by paying the dollar. A is to perform by keeping the offer open. Thus there is mutuality, for both have bound themselves. Courts sometimes confuse the option with the contract which is made when the offer, kept open by the option, is accepted and a contract for the sale of land is created. Then there is a promise to buy and one to sell. This second contract also possesses mutuality of obligation.15

71. Forbearance to sue. The promise not to press or to bring suit on a claim may constitute a sufficient consideration. Such cases are generally divisible into one of three classes:

(1) Where the claim is well founded. In this event, the promise to forbear is a sufficient consideration to support a contract. In fact, the early English cases and a few American states recognized no other forbearance as a consideration. This situation constitutes a consideration in all jurisdictions.1

(2) Where the claim is doubtful. If the claim is doubtful, either in law or in fact, forbearance to press

15 See 2 Illinois Law Review 463.

16 Harris v. Cassady, 107 Ind. 158, 8 N. E. 29.

that claim is a sufficient consideration in most jurisdictions. Up to the time of an actual decision by the court as to the validity of the claim, forbearance is a consideration. But after a decision has been rendered whereby B must pay A, then a promise by B to pay A if he will not press the judgment is not a consideration, because B is promising to do what he is legally bound to do, namely, to pay.17

In the case of Alliance Bank v. Broom,18 A was pressing B for the payment of a claim which was due. B offered A certain securities if he would not sue on the claim. Later, A sued B on this promise. It was held that as A did actually forbear suit in reliance upon B's promise to furnish the securities, he could recover. Although A need not have sued, yet his forbearance did constitute a consideration.

(3) Where the claim is unfounded. If the claim is not only doubtful, but without foundation, two situations arise. If A knows that his claim is without foundation, his forbearance is not a consideration. But if he believes that he has an enforcible claim, and this belief is reasonable, the forbearance is a consideration. This case approaches that of (2) above. If his belief, although honest, is unreasonable as to the validity of his claim, the forbearance is probably not a consideration.19

The waiver of a right or forbearance to sue a third person is a valid consideration for the promise of the promisor. A's agreement not to sue B is a considera

17 Simmons v. American Legion of Honor, 178 N. Y. 263.

18 2 Drew & S. 289 (Eng.).

19 Anson, Contracts (Huffcut's 2d ed.), § 131; Pennsylvania Coal Co. v. Blake, 85 N. Y. 226, LEADING ILLUSTRATIVE CASES.

tion for C's promise to pay B's debt to A.20 Mere forbearance to sue without any promise to forbear is not always a consideration. Especially is this true where it is clear that the parties intended that a promise be made. In Strong v. Sheffield,21 A promised that if B would guarantee C's debt to him, he would not sue until he needed the money. The fact that A had in fact forborne in reliance on the promise, did not constitute a consideration. He should have given the promise, as intended.

Mutual promises to forbear are always sufficient to support each other.22 Moreover, it is no objection to the validity of the agreement that no particular time was specified as the period for forbearance. This will be held to be a reasonable time.

72. Compromise.-A common form in which a forbearance appears as the consideration for a promise is in the settlement or compromise of a disputed claim. Where A claims that B owes him sixty dollars for groceries, and B claims it is fifty dollars, both being sincere in their dispute, A's promise to compromise for fifty-five dollars is a consideration for the contract to forbear to sue. But to forbear to do what one may not legally do, as to agree not to sue on a gambling debt in return for B's promise to pay, is not a consideration.23

In respect to compromises, the rule is general that the promisee must in any event believe in his claim. But, as indicated in the section on forbearance, not

20 Howe v. Taggart, 133 Mass. 284.

21 144 N. Y. 392.

22 Howe v. Taggart, 133 Mass. 284.

23 Everingham v. Meighan, 55 Wis. 354, 13 N. W. 269.