We said above that a promise to contribute money to a charity—a pure gratuity—is not a contract in English jaw, because there is no consideration. The .giver gets no quid pro quo. In the theory of the French and Roman law, there is a contract because there is a desire of the giver to give or his satisfaction or pleasure in giving. There is an ob ject—that is, something due—the money he has prom ised.
5. What may be a sufficient may be stated as a general principle that the adequacy of the consideration will not be inquired into. "The value of all things contracted for is measured by the appetite of the contractors, and therefore the just value is that which they be contented to give." 1 The consideration may consist in "some right, in terest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or other responsibilty given, suffered, or undertaken by the other." The Supreme Court of the United States has held that the release of a supposed right of dower (a wife's interest in her husband's real estate), which the parties thought necessary to confirm a title, is a good consid eration for a promissory note. Forbearance to prose cute a meritorious claim made in good faith may also be sufficient.
But if a person is legally bound to do a certain thing, a promise to do it is not a sufficient considera tion. Thus part payment of a liquidated claim which is due is no consideration for a promise to forego the balance. But if A out of charity does some kindly act for B, and the circumstances are such that B could have had no intention of paying for what is done, promise on his part to pay will not be implied. But a promise will not be binding if based upon a consid eration which fails or which is non-existent. The rule may be different where, for instance, a piece of property is bought, and both vendor and purchaser understand that the title is doubtful, and it proves to be faulty. • If the consideration is illegal, it will not support an action. If the parties contract about something which they believe exists, but which really does not, there is no contract. Thus if A in _Montreal sells a horse which is in Toronto, but unknown to him the hOrse is dead, there is no contract. Similarly if A insures B's life in which at the time he has an insurable interest, but unlmown to him B is dead, the policy is void. But A who has a ship at sea may insure it "lost or not lost," provided he does not actually know it is lost at the time; and the insurer will be bound tho the ship may have been lost when the contract was made. A could make a contract to buy an auto mobile to he made a year hence; or he could sell a crop of hay which he expects next season. If A promises B $10 provided he will not drink or smoke for a month, there is a sufficient consideration.
6. The Statute of Frauds.—The English Statute of Frauds was enacted in 1676. In the United States and Canada, provisions similar to those of the Eng lish Statute of Frauds are in force. Their purpose is to prevent frauds and perjury in the proving of contracts. The general rule is that a contract must be proved by a writing. But there are exceptions to the rule: (a) A contract may be proved orally if the writ ten contract is lost by unforeseen accident, or is in the possession of the adverse party or of a third person and cannot be produced.
(b) A commencement of proof—i.e., a writing which, tho it does not set out the contract, makes its existence probable—may be sufficient. This is the "note or memorandum" of the English statute.
(c) A writing is not necessary if the amount in question does not exceed fifty dollars.
(d) If the adverse party admits the contract under oath, no writing is necessary.
There is a further exception, that any facts con cerning a commercial matter may be proved orally. But if the amount in question is over fifty dollars, a writing will be necessary, in Quebec, even in com mercial matters: (a) Upon any promise or acknowledgment whereby a debt is taken out of the operation of the law respecting the limitations of actions. Thus, by the law of Quebec, for example, a promissory note is prescribed or outlawed in five years. If a plaintiff is to succeed in an action upon a note made more than five years before the action is taken, then he must allege and prove by a writing signed by the defend ant that the latter has acknowledged his indebtedness and promised to pay it. If an amount had been paid on account and the amount was written on the back of the note and initialed by the debtor, that would be sufficient proof that he regarded the note as still un paid and payable.
(b) A promise to answer for the debt, default or miscarriage of another person must be in writing.
(c) A minor after attaining his majority may ratify a contract made during his minority. His rati fication cannot be proved unless it is in writing.
(d) In the case of a contract for the sale of goods exceeding $50 in value, the contract cannot be proved unless the buyer has accepted or received part of the goods or has given something in earnest to bind the bargain.
The two sections of the English statute relating particularly to contracts may be briefly summarized. Section 4 states that the following promises or con tracts to be enforceable must be in writing and be signed by the debtor : (a) Any promise of an executor or administrator to pay out of his own estate any debt due from the estate he is administering.
(b) Any promise to answer for. the debt, default or miscarriage of another person.
(c) Any promise to perform some act, such as to transfer property or pay money, in consideration of marriage.
(d) Any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them.
(e) Any contract which by its terms is not to be performed within the space of one year from the making thereof. For example, a lease for more than one year must be in writing.
The seventeenth section provides that: No contract for the sale of any goods, wares, or merchan dise for the price of ten pounds sterling, or upwards, shall be allowed to be good, except (1) the buyer shall accept part of the goods so sold and actually receive the same ; (2) or give something in earnest to bind the bargain; (3) or that some note or memorandum in writing of the said bar gain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully author ized.