§ 98. Estoppel to deny the elements of a contract. There is no reason to suppose that the ordinary principles of estoppel do not apply to the formation of contracts. If, therefore, either party misrepresents an element of fact essential for the existence or non-existence of a contract, and the other party justifiably relies upon this representation and takes detrimental action in consequence, it will not be open to the party making the representation to show his error. Thus, if an acceptor dates his acceptance at a date beyond the last moment when the offer would be open, and, relying on this date, the offeror changes his position, the acceptor could not show that the date was an error and that the acceptance was in fact seasonably dispatched.49 So, it would seem, if after a letter of acceptance had been mailed completing a contract, the acceptor should telegraph a rejection of the offer, and relying on this rejection the offeror should change his position before the receipt of the acceptance, the acceptor should not be allowed to show that he had in fact accepted the offer while still open. It is essential, however, for the creation of an estoppel that there should be a misrepresentation of existing fact; it is not enough that relying upon a promise of future performance, the promisee changes his position.50 49 But if the offeror takes no action in reliance upon the erroneous date, the acceptor could show the truth. Dunlop v. Higgins, 1 H. L. C. 381; Stock s ham v. Stockham, 32 Md. 196, 208. 50 See infra, § 690 and as to estoppel to deny consideration, infra, §§ 115a, 139. Technical meaning of benefit and detriment. .. Application to bilateral contracts of the definition of consideration in un .102a ilateral contracts.... 103 A distinct principle is necessary to explain bilateral contracts. 103а A promise which by its terms may be performed without detriment to the promisor or benefit to the promisee is insufficient consideration.... A bilateral agreement may be valid though one party may avoid the agreement or avoid performance of his own promise... 104 105 An insufficient bilateral agreement may sometimes by performance on one side become a valid unilateral contract. 106 Written as well as oral promises need consideration. . 107 The promises in negotiable paper require consideration between a promisor and his immediate promisee... 108 A promise contingent on an unknown past event is valid consideration.. 119 120 121 Mutual promises to extend an interest bearing debt, are sufficient consideration for each other.. 122 Promise of payment or payment of part of a debt by one joint debtor as consideration... 123 Payment of a portion of a debt with negotiable instrument.. Payment of debt by a third person..... 124 125 Composition agreements with several creditors are supported by sufficient consideration... 126 When payment of principal in full discharges interest also.. 127 Any payment received in full satisfaction of an unliquidated or disputed claim is valid consideration...... 128 Payment of so much of an unliquidated or disputed claim as is admittedly due, is valid consideration.... 129 Performance, or promise to perform any obligation previously existing under contract with the promisee is not valid consideration.. Unsoundness of arguments sustaining such agreements. 130 .130a 131 Whether performance or promise to perform a contractual duty previously undertaken with a third person is valid consideration... The defendant should be liable if the consideration is beneficial to him. Performance or promise of performance of a duty imposed by law is not valid consideration.... .131a 131b ... 132 Performance or promise of performance of an act which the law holds the promisee bound to do, is not valid consideration though the law provides no means for the enforcement of the legal duty... Consideration void in part.... Forbearance or promise of forbearance as consideration. 133 134 135 Promises in consideration of an act previously done at the request of the promisor.... 144 Some jurisdictions in the United States deny validity to a promise in consideration of an act previously requested... 145 Other jurisdictions in the United States allow validity to a promise in consideration of an act previously requested... 146 Promises in consideration of moral obligation. 147 A previous moral obligation is generally held an insufficient consideration in the United States... 148 In a few states the doctrine of moral obligation is still recognized. 149 Promises to rectify mistakes, or previous illegal transactions... 150 Ratification by an adult of a contract made during infancy. 151 What amounts to ratification..... 152 Admission of liability or part payment is insufficient to terminate the right to avoid an obligation for infancy. Ratification of an infant's contract may be conditional or partial. Ratification of a contract made during insanity... 153 154 155 Promise by a widow to perform an agreement made during coverture.. 156 157 Promise by a discharged bankrupt.... 158 Promise to pay a debt voluntarily released... 159 Promise to pay a debt barred by statute of limitations-early law.. 160 Any admission was at one time held sufficient. 161 Modern rule as to revival of indebtedness... 162 A new promise or acknowledgment is sufficient whether made before or after the statute has already run. 163 Necessity of a writing.... 164 The indebtedness to which a new promise or acknowledgment relates must be certainly defined... 165 An unqualified acknowledgment of a debt implies a promise to pay it.. An admission of indebtedness though implying no promise to pay is still sufficient in some jurisdictions.... 166 167 Acknowledgments qualified by refusal or statement of inability to pay 168 169 Illustrations of sufficient acknowledgment.. An unqualified acknowledgment made under circumstances showing no intention to pay... 170 171 172 173 174 175 176 177 New promise to pay a debt in part or in installments. 181 A new promise to pay when a debtor is able or on other conditions. 182 183 Promises without consideration not to plead the Statute of Limitations. 184 Terms on which a new promise revives a debt.. 185 A new promise cannot revive liability in tort.. 186 Whether a new promise can revive a liability on a specialty... 187 Whether a new promise can revive an unliquidated contractual obligation.... Effect of a new promise or part payment by a principal debtor or a surety upon the liability of the other..... 193 New promise or part payment made by a fiduciary. 194 New promise or part payment made by a surety. 195 Whether the creditor should sue on the original indebtedness or on the new promise.... 196 New promise after action brought.. 197 A new promise made on Sunday, or by an insolvent. 198 A new promise based on a previous agreement within the Statute of Frauds... 199 Ratification and adoption.. Explanation of anomalous cases where transactions are enforced without present consideration.. Revival of debts barred by some positive rule of law. Waiver.... Defeasible defences.. § 99. History of the law of consideration. 200 201 202 203 204 It is requisite in English and American law for the formation of a simple contract that legally sufficient consideration be given for the promise or promises therein. This doctrine finds no close analogy in the Roman or modern Civil Law. The history of the requirement is bound up with the history of the common-law action of assumpsit. Though certain parol contracts were recognized by the law prior to the rise of the action of assumpsit, yet it was only by means of that action that the formation of an infinite variety of contracts without a sealed writing, became possible, and after its development the kinds of parol agreements previously recognized were enforced generally by means of that action so that its requirements were applied to them. The action of assumpsit was originally a form of action on the case and regarded as sounding in tort like the action of deceit. "The earliest cases in which an assumpsit was laid in the declaration were cases against a ferryman who undertook to carry the plaintiff's horse over the river, but who overloaded the boat, whereby the horse was drowned; against surgeons who undertook to cure the plaintiff or his animals, but who administered contrary medicines or otherwise unskilfully treated their patient; against a smith for laming a horse while shoeing it; against a barber who undertook to shave the beard of the plaintiff with a clean and wholesome razor, but who performed his work negligently and unskilfully to the great injury of the plaintiff's face; against a carpenter who undertook to build well and faithfully, but who built unskilfully."2 From cases of misfeasance, like those just alluded to, the step was soon taken to cases of nonfeasance where the only wrong was a failure 1 See 8 Harv. L. Rev. 252, by Ames. 2 The History of Assumpsit, 2 Harv. L. Rev. 1, 2. In this and a succeeding article, ib. 53, Professor Ames definitively traced the early law on the subject. |