contract he would not have freely made. It renders the contract voidable by the other party.

The courts will not interfere to relieve a person from his contracts merely because they are unjust or oppressive and constitute hardship upon him. Even if he were in

distress or great necessity, or sick, or infirm from age, or mentally weak, his contract is not for that reason voidable, though unfair and hard, provided he exercised his own will and judgment. For, by such circumstances he is not deprived of his freedom to contract. But it must be shown in addition thereto that an advantage was taken of him, depriving him of his own mental freedom. Argument, solicitation and pleading, however strong, do not in themselves constitute undue influence.

The chief cases of undue influence arise when the parties sustain a relationship to each other which puts one of them in a position calculated to give him great advantage over the other in directing his conduct and acts. Under such circumstances, the parties may still contract with each other; yet if after a contract is made, the party at a disadvantage, in apt time, avers that he was imposed upon, the court will presume in his behalf that such was the case, casting the burden upon the other of showing that such was not the case.

The chief relationships in which the law will presume undue influence are: (1) family relationships in which one party stands in an influentially superior position; (2) the relationship of guardian and ward; (3) that of attorney and client; and (4) that of physician and patient.

It is, however, not necessary that there be any technical relationship. "Courts have refused to set any bounds to the circumstances out of which a fiduciary relation may spring. it extends to every possible case

*

in which a fiduciary relation exists in fact, and in which there is confidence reposed on one side and resulting domination and influence on the other." 66

(d) Disaffirmance and ratification of contracts voidable for foregoing reasons.

DISAFFIRMANCE.

A

Sec. 47. CONDITIONS OF party wishing to disaffirm on the ground of fraud, duress or undue influence must do so with reasonable promptness under the circumstances after he has discovered the fraud, or after the undue influence or duress has been removed; and he must put the other party in statu quo. In cases of fraud he may either disaffirm or sue for damages.

Contracts obtained by means of fraud, duress or undue influence are voidable, not void. Until avoided they have the status of contracts. The injured party may not care to disaffirm. It is for him to do so after discovering the fraud, or after the duress and undue influence have ceased to operate.

This he must do, if at all, within a reasonable time, and what is a reasonable time depends on all of the circumstances.67

He must also give back what he has received under the contract. Unless he has done so, or made a tender of doing so, he cannot rescind.68

Sec. 48. RATIFICATION. A contract avoidable for the causes considered in this chapter may be ratified by undue

66. Mors v. Peterson, 261 Ill. 532.

67. Mortimer v. McMullen, 202 Ill. 413, 67 N. E. 20. 68. Burwash v. Ballou, 230 Ill. 34.

delay and by express affirmation, or by any acts that are inconsistent with disaffirmance.

The contract being voidable only, and not void, may be ratified. This may be by mere delay; 70 or by language affirmative of the contract; or by conduct which is inconsistent with the idea of disaffirmance, as selling the property,71 or in any way dealing with it in a manner which shows affirmance. One cannot affirm and then disaffirm, he must do one or the other.

Of course nothing said or done before the fraud is discovered or before the duress or undue influence has ceased to operate can be considered ratification.

70. Burwash v. Ballou, 230 Ill. 34.

71. Tarkington v. Purvis, 128 Ind. 182.

Sec. 49.

CHAPTER 5.

CONSIDERATION.

A. Theory and Nature.

CONSIDERATION DEFINED; A NECESSARY ELEMENT IN EVERY SIMPLE CONTRACT. A promise or undertaking not under seal is not legally binding upon the promisor unless the promisee thereof has on its faith and pursuant to it parted with or promised to part with something to which he has a legal right, or, in other words, unless such promisee has sustained a legal detriment. This legal detriment constitutes the consideration.

By the English common law two classes of promises were enforceable: First, where the promise was made in solemn form, that is, under seal; and second, where something was given, done, or promised by the promisee on account of the promise. In the formation of simple contracts, whether written, oral or implied, consideration must enter, and it must enter also in sealed contracts where the statute has abolished the ancient meaning of the seal in that regard.

We have noticed that contracts result from offer and acceptance. In every simple contract the offer must consist in a promise to do something or to part with something, if in return therefor, the offeror will also do something or part with something or promise to do so. There is here an exchange of values, that is to say, each party gives up or undertakes to give up something to which he is legally entitled in return for the other party's

similar act or engagement. And the test of the validity of the contract alleged to be found in an offer and acceptance consists in this: Did the party now seeking to enforce a promise made by the other (either by way of offer or acceptance) sustain a legal detriment-give up something to which he was entitled? There may have been an offer and an acceptance, but the offeror or the acceptor may have promised to do something he was already bound to do; he may have promised to surrender something to which he had no right. If so, no contract resulted.

We define a consideration by saying it is a detriment to the promisee, or a benefit to the promisor; but it is only in rare cases we need consider whether it is a benefit to the promisor. For it is not usually to be considered a benefit to the promisor unless it is also a detriment to the promisee. It is a benefit to the promisor when he can demand something or has obtained something to which he was not otherwise legally entitled. We may then for our purposes simplify the discussion by referring to consideration in its aspect as a detriment to the promisee.

Thus, A offers to sell B a certain acre of ground for $5,000 on certain terms, one year from date. B accepts the offer. Each are promisors; each promisees. Each has promised to part with something to which he was legally entitled. He has therefore in the eyes of the law sustained a legal detriment. A contract has resulted.

Again, A orders a sack of flour from his grocer. A promise to pay the reasonable value of the flour is implied. B delivers the flour, thereby accepting the promise with an act. B in this case never was the promisor. But he becomes a promisee by accepting the promise by parting with that which the promise calls upon him to part with. He has sustained a legal detriment. The consid