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additional requirement that the consideration on both sides shall be equal.
If a substituted stood upon the same footing with an original contract, the debtor's promise to give something else would be a consideration for the relinquishment of the old debt, and its relinquishment would in turn be a consideration for the debtor's promise. And why may not a creditor relinquish a debt in consideration of the debtor's promise ? Is it because a sum of money due is thought to be of greater value than the same amount of money in hand ? Such seems to be the drift of the reasoning against such relinquishment; for it is advanced as an argument, that a creditor having performed his part of the contract has a “ perfect right” to the debt. (Byles on Bills, Am. edition, 182, note by the distinguished American editor.) This is true ; but it makes in favor of, instead of against, the validity of the new contract; it is a reason why the creditor can give the money due, but by no means why he cannot. One has a “perfect right” to money in his possession, but that was never heard of as an objection to his using it. A lawful way to use money is to give it in consideration for a contemporaneous promise. The relinquishment of a debt to which the creditor has a “perfect right,” is equivalent to an advance of an equal amount of money. Why does not the law treat it, then, as a consideration for a present promise ? It is said, in answer, that the creditor cannot be bound by a naked agreement to release a debt. But it is a mistake to consider the agreement naked, and here lies the fallacy of the argument. It has a consideration ; to wit, the promise of the debtor to give something else. Such a promise is deemed sufficient to sustain an agreement to pay money outright ; and, if so, it must, of necessity, be sufficient to sustain a promise to release a debt; for however “ perfect” may be the “right" to the debt, possession is still necessary to make the ownership complete.
Thus it appears that substituted and original contracts stand in reason upon the same footing. How then is the distinction which the law makes between them to be accounted for ? It probably arose from the following considerations.
Should the Courts examine into the consideration of contracts, they would be constrained by the principles of equity which guide their action, to require that the consideration on one side should be equal to that on the other. In order to enforce such a rule, it would be necessary to put a specific valuation upon each article that could become the subject-matter of a contract. But as the value of goods fluctuates according to the state of the market, this could not be done. The Courts, therefore, would be obliged either to pronounce all contracts void for want of equality of consideration, or to assume to be the agent of both parties to re-adjust the terms of the contracts. It is to avoid either alternative that they refuse to inquire into the sufficiency of the consideration.
There is one exception to the refusal to inquire into the adequacy of the consideration ; to wit, in contracts for the exchange of money. Here the value of the articles to be exchanged is fixed by law, and the Courts cannot refuse, but are bound to take judicial notice of the fact. They accordingly hold that, as money is the legal standard of value, contracts to exchange different amounts of money are not binding, because there is no consideration for the balance of, or difference between, the two amounts.
An agreement to give a different amount of money from that due, or even the same amount upon a different time (time being an additional legal consideration without a return), is not binding, because it lacks the equality of consideration which the law requires in exchanges of money; and without a legal sanction to give the agreement efficacy, it amounts to nothing; hence it cannot be a substitute for, or satisfaction of, the debt. As agreements of this kind make up the bulk of substituted contracts, which are, for the most part, agreements either for a reduction in the amount of the debt, or for an extension of credit, it was inferred, though erroneously, that all substituted contracts are likewise not binding. It was not observed that where something other than money is offered in consideration for the money which is due, the transaction stands upon the same footing with other bargains; in such case, as in ordinary barter, the debtor agrees to give one thing in return for another. “ And where," said Baron PARKE, in Cooper vs. Parker, 15 C. B. 822, “the matter pleaded in satisfaction of a liquidated demand is of uncertain value, the Court will not set a value upon it, or inquire into the sufficiency of the consideration.” In
In consequence of this oversight in not discriminating between the two classes of contract,—that is, between contracts for the exchange of money, and contracts not for the exchange of money,—the ambiguous maxim, that an accord without satisfaction is no bar, was devised in order to prohibit all substituted contracts. That maxim says, that an agreement is not satisfaction of a debt; it means, that a void agreement, which is not an agreement, is not satisfaction of a debt. The question always is, whether the agreement is binding; that is, whether it amounts to a legal agreement. It is only when it wants some essential of a valid agreement, as e. g. a consideration, that it is said not to be a satisfaction of a debt. Where there is no doubt about the consideration, as in case of a fresh consideration, the agreement is invariably held to be satisfaction, if such was the intention of the parties.
It is easy to see how the maxim, that an accord without satisfaction is no bar, originated. It is an undue extension of the familiar rule, that an agreement to do what the party is already bound to do is not binding. Thus, in trespass for taking the plaintiff's cattle, it was held not to be a good plea to say, that there was an accord that the plaintiff should have his cattle again; that not being satisfaction, unless accompanied by delivery of the cattle. 1 Bac. Abr. 22. Accordingly, where the new agreement is merely to do what the party is already bound to do, it is strictly true that the additional agreement is not satisfaction unless executed. The new agreement is not binding because it wants a consideration, and, therefore, having no legal existence, it could not be satisfaction of the demand.
It is contended that the law must protect the creditor's rights, which would be impaired if the debtor could escape from the terms of one contract by making another. But the answer to this is, that the new contract, like any ordinary contract, requires the consent of both parties; and if the creditor cannot take care of
his interest in making it, the reason must be that he is incapable of making any bargain. The argument proves too much ; it would prevent all contracts. Instead of an injury, however, the new contract works a benefit to the creditor, as well as to the debtor. Take, for the sake of illustration, the following case :-A contractor, who is unable to raise money, is indebted to a person who is about to have a house built. Why should not the creditor be allowed to relinquish his debt, in consideration of his debtor's agreeing to build him a house of which he stands in need ? In this way the debtor would be enabled to pay his debt, which otherwise he could not do, and a creditor to save himself the expenditure of an equal amount of money. Thus it is often the only, as well as the best mode in which a creditor is able to collect his debts.
It is evident that the maxim is not now looked upon by the Courts with favor. "Thus Baron PARKE, following Mr. Justiee Byles in his Treatise on Bills, p. 153, decided in Foster vs. Dawber, 6 Exch. 839, that the rule does not apply to commercial paper; which he held to be governed by the law merchant, and to follow, in this respect, the civil law and the continental law of Europe. By this decision, contracts for the exchange of money, which mainly take the form of promissory notes and bills of exchange, and to which alone, as has been shown, the reason of this rule applies, are withdrawn from its application. This decision looks like the precursor of the total overthrow of the maxim; for it is inconceivable that the same Court will continue, for any length of time, to hold an agreement to accept a part of a sum of money in discharge of the whole to be satisfaction, if put in the form of a promissory note or bill of exchange, but not if put in any other form of a contract, even though it be followed by actual payment or execution.
This short article, which investigates the ground-work of the doctrine of Accord and Satisfaction, is taken from the London Law Magazine and Law Review for May, 1863; a periodical which, besides abundant professional information, frequently contains original suggestions upon recondite points of law which are worthy the consideration of the student of jurisprudence.
The maxim, which the writer of this article shows to have been an imperfect generalization, is an illustration, though an unfortunate one, of the independent growth of the common law. Had the civil law been consulted when a case first arose which called for an examination of the subject, the doctrine of Novation would have been adopted, as it was in Continental Europe, without hesitation. A strict analysis of the doctrine would have shown, it is true, that its application should be limited to such contracts as are not for the exchange of money, in which contracts there exists a perfect bargain,-one thing is agreed to be given in exchange for another. Money contracts, either original or substituted, which have but a consideration in part and none for the residue, should, in strictness, be pronounced void, but the decision should be distinctly put upon the ground of partial absence of consideration, which does not apply to any other class of contracts. It is more than probable, however, that the great convenience of leaving to the parties themselves the question of the sufficiency of the consideration would have determined the Courts not to exact equality of consideration even in money contracts. Their subsequent conduct justifies this opinion. The maxim has been abandoned in all contracts which are put in the form of negotiable instruments; in short, to speak generally, in all money contracts. The English Courts are now in the awkward position of having subverted the maxim in money contracts, which gave rise to its invention, and to which it justly applies, and yet of upholding it in other classes of contracts to which it was, without reason, extended.
The reason ordinarily, given for the maxim is delusive. It is said that the old debt is a past consideration which will not sustain a promise to do or give anything else in its stead. Now, as our author says, it is not a consideration for a promise of its own payment, for that is already due, and an additional promise would not add to the strength of the obligation. But it is a subsisting consideration to support a contract to do anything else, instead of