CONSIDERATION (Lat. consideratio, from considerate- to observe, from coin-, together -( sides, star). In the law of contracts, in the case of a simple contract, a detriment or the surrender of a right by one party in exchange for the promise of the other party. In ease of a bilateral contract—i.e. one in which the promises are mutual—each promise is a consideration for the other. _\ consideration is essential to a valid simple contract. A mere promise made without a consideration is called by lawyers a naked promise (ninium pact/tin), and on it suit will not lie. Such a promise, even though made in writ ing. is not a valid legal contract; but by the law of negotiable paper it is presumed to be given for valid consideration. This presump tion may be rebutted as between maker and payee, but is conclusive in favor of bona fide holders, for value, against whom of con sideration is never a defense by the maker of negotiable paper. The requirement of considera tion as a necessary element in a simple contract is due to the historical development of the con tract action of assumpsit (q.v.) as an action in tort. In that action the plaintiff was required to show that he had given up a right or suf fered some detriment in reliance upon, Or in ex change for. the defendant's promise, by reason of which he had been damaged. Thus a consid eration need not lie in the form of a direct benefit to the contracting party, hut may be something involving loss or prejudice to the second party to the contract. A service rendered gratnitonsly is not a consideration which will support a promise to pay for the service made subsequently to the rendering of the service, be cause such service is not rendered in reliance upon. or in exchange for, the promise; thus, where one man voluntarily rescues another's property from loss, and the second party prom ises to pay therefor, that promise cannot be sued upon even though made in writing.. So a promise
to reward another for performing his legal duty cannot he sued upon, sinee the performanee of a legal duty is not the surrender of a right or any detriment in a legal sense. Thus, if a tax payer promises to pay a policeman for guarding his house, it is held that, since it is the police man's duty to guard the public's property, there has been no real consideration and no legal con tract, and the promise of a debtor to pay his debt is not a consideration for a contract. as the promisor is already under a legal obligation to pay his debt. If, however, the promise is made after the debt is barred by the statute of limi tatiom:, the promise has the effect of reviving the and may be sued upon although no consideration is given for it. This is anoma lous. The law takes no account of the adequacy of consideration if the contract is made in good faith; but if inadequacy results from fraud or mistake, the contract may he rendered void or voidable according to the circumstances of the ease. If the consideration given is contrary to public policy, or is a promise to do an illegal act, the contract based therein is illegal and void. If the consideration be illegal only in part, still the contract is void unless it is pos sible to separate the illegal and the legal so that the one may be thrown out as void and the other enforced. Failure by one party to a contract to perform his contract is commonly, though errone ously, stated to be failure of consideration. The effect of a true failure of consideration is to prevent the formation of a contract. See CON TRACT : 111 STA K E FRAUD.