The early cases of actions of assumpsit show by negative evidence which is almost conclusive that in the first half of the 15th century, the doctrine of consideration was quite unformed, though the phrase quid pro quo is earlier. But in 1459 there was a case which showed that an action of debt would then lie on any consideration exe cuted. In the Doctor and Student (A. D. 1530) we find substantially the modern doc trine. So far as the writer of that work knows, he finds the first full discussion of consideration by that name in Plowden's report of Sharington v. Strotton, Plowd. 298.
The question of consideration was of im portance in the learning of Uses before the statute, and the reflection is obvious that both the general conception and the name of Consideration have had their origin in the court of chancery in the law of uses and have been thence imported into the law of contracts rather than developed by the com mon-law courts. On this hypothesis, a con nection with the Roman causa may be sug gested with some plausibility. But see CAUSA.
The same writer proceeds to say that in the process thus sketched out some steps are conjectural, and considers that the ma terials are not ripe for a positive conclu sion and will not be until the unpublished records of mediaeval English law shall be competently edited. See Holmes, Common Law 253, where a different theory of the origin of consideration is given as being a generalization from the technical require ments of the action of debt in its earlier form.
The theory on which the phrase nudum pactum was wrongly applied was that the maxim signified that a gratuitous promise to da or pay anything on the one side, with out any compensation on the other, could only be enforced, in the Roman law, when made (or clothed) with proper words or formalities—pact/on verbis prescriptis yes titum; Vinnius, Corn. de Inst. lib. 3, de verborunn obLigationibus, tit. 16, p. 677; Cod. lib. 7, tit. 52. This solemnity it was argued had much the force of our seal, which imported consideration, as it was said, meaning that the formality implied consideration in its ordinary sense i. e., de liberation, caution, and fulness of assent ; Hare, Contr. 146 ; 3 Bingh. 111; 3 Burr. 1639; Wing v. Chase, 35 Me. 260; Augusta Bank v. Hamblet, 35 Me. 491; Erickson v. Brandt, 53 Minn. 10, 55 N. W. 62 ; but see Winter v. Goebner, 2 Colo. App. 259, 30 Pac. 51. There was, however, the distinc tion often lost sight of but which ought to be made that even on the theory that the vitality of a seal was solely as a token of the existence of a consideration, under the common law it was not the fact that the in strument was under seal which gave it vi tality, but the consideration whose exist ence is implied therefrom, while, under the civil law, the subject of consideration bore no such relation to the contract as It does under the English law even accepting the theory of Stephen and other writers stated under title CONTRACT, q. v., that the
consideration is not an essential element of a contract,—necessary to its existence. Un der the civil law it was of the essence of certain contracts that they should be gra tuitous, and those based upon a considera tion constituted only a single division called commutative contracts, which again was subdivided into the four classes represent ed by the formula quoted, supra, do et des, etc.
While, therefore, the Roman law doubt less exercised a large influence upon the English law of contracts, the subject of con sideration particularly has been overlaid with erroneous theories, and the ascertain ment of its true bearing long postponed, by the pursuit of false analogies, due probably to the early adoption of such phrases as the above and their incorporation into the com mon law, to express superficial impressions created by them rather than the meaning attributed to them by the Roman jurists.
These analogies have, however, been in recent years the subject of more careful In vestigation, and the study of the early Eng lish authorities and a greatly increased in terest in, and knowledge of, the Roman law, have resulted in disturbing many of the theories of consideration in its true relation to the contract and the true meaning of the seal as making a contract actionable which would not be so if by parol.
The consideration is generally conclusive ly presumed from the nature of the con tract, when sealed; Grubb v. Willis, 11 S. & R. (Pa.) 107; but in some of the states the want or failure of a consideration may be a good defence against an action on a sealed instrument or contract; Solomon v. Kimmel, 5 Binn. (Pa.) 232 ; Case v. Bough ton, 11 Wend. (N. Y.) 106 ; Leonard v. Bates, 1 Blackf. (Ind.) 173; Coyle's Ex'x v. Fowl er, 3 J. J. Marsh. (Ky.) 473 ; Peebles v. Ste phens, 1 Bibb (Ky.) 500 ; Matlock v. Gib son, 8 Rich. (S. C.) 437.