as an inducement to the promise; and therefore, although it would have fallen within the common law limitation of assumpsit, it is no consideration.

Assuming then that the law derived consideration from equity, the question remains: Whence did equity derive the principle? It is sometimes answered: From the civil law. If this means that it resulted from an adoption or adaptation of the Roman distinction between contractus and nudum pactum, the opinion is untenable. The causæ civiles which turned pacts into contracts were incapable of generalization, and even by omitting the formal contracts we obtain only the inadequate idea of valuable consideration. The civil law supplies however another application of the term causa, which is more to the point. Money paid or property delivered sine causa could be reclaimed; and a promise made sine causa was invalid.1 This rule applied to contracts, whether formal or not. Causa was not of course restricted to valuable consideration, for this was never essential to a stipulation, but it included any adequate motive or sufficient reason. The rule rendered invalid promises made either under a mistake (sine causa ab initio) or for a valuable consideration which failed (causa data causa non secuta). Now the Canon Law expressly renounced the moribund distinction between contractus and pactum,2 and this example was followed very generally throughout Europe. This breakdown of the old theory would naturally call into prominence the requirement of causa, as being the only remaining limitation upon the binding efficacy of agreements; and that this was actually the case sufficiently appears from the following extract from Molina, a jurist of the sixteenth century. Observant etiam Felinus . . . et doctores communiter, ut jure canonico ex pacto nudo actio concedatur, qua paciscens cogatur implere pactum, necessariam esse causae expressionem: alioquin reus non cogetur solvere, nisi

1'Est et haec species condictionis, si quis sine causa promiserit vel si solverit quis indebitum . . . Sed et si ob causam promisit, causa tamen secuta non est, dicendum est condictionem locum habere.' Digest, 12, 7, 1.

Decr. Greg. i. 35, 1. Pacta quantumcunque nuda servanda sunt. 3 Stair's Inst. i. 10, 7.

actor causam sufficienter probet. Quo loco observa, sufficientem causam ut solvere cogatur esse titulum donationis.'1 Molina proceeds to give examples of the rule, to identify it with the rule of the civil law already mentioned, and to call attention to the mistake made by some writers in confounding causa in this sense with the causa that was originally necessary as a vestimentum pacti. This same rule that a cause is necessary to sustain a promise is still recognised in its original form by the French law.2 An enunciation of the same principle, very significant with regard to the English law, is to be found in Doctor and Student. The Student knows nothing of consideration, but expounds the law of contract exactly as it was understood during the reign of Henry VIII. But the Doctor of Divinity speaks as follows: And of other promises made to a man upon a certain consideration, if the promise be not against the law, as if A. promise to give B. 201. because he hath made him such a house, or hath lent him such a thing, or such other like, I think him bound to keep his promise. But if his promise be so naked that there is no manner of consideration why it should be made, then I think him not bound to perform it, for it is to suppose that there was some error in the making of the promise. . . And in all such promises it must be understood that he that made the promise intended to be bound by it, for else commonly after the doctors he is not bound, unless he were bound to it before his promise: as if a man promise to give his father a gowne that hath need of it to keep him from cold. And also such promises, if they shall bind, they must be honest, lawful, and possible, and else they are not to be holden in conscience though there be a cause. And if the promise be good and with a cause, though no worldly profit shall grow thereby to him that maketh the promise, but only a spiritual profit, as in the case before rehearsed of a promise made to an University, to a Citie, to the Church, or such other, and with a cause as to the honour of God, there is

1 Molina, De Justitia, Disput. 257.

2 Code Civ. 1131.

debt was available. The only subsequent change that need be mentioned is the final recognition of a single limiting principle throughout the law of contracts by the merger of quid pro quo in valuable consideration.

62. HISTORY OF THE BENEFICIARY'S ACTION

IN ASSUMPSIT1

BY CRAWFORD DAWES HENING 2

"The true interest of the topic of Procedure is derived from the manner in which the tribunals have contrived from time to time to effect changes in the substance of the law itself, under cover of merely modifying the methods by which it is enforced." - HOLLAND: "Elements of Jurisprudence," chap. xv. page 267 (1888).

MODE

ODERN English law, in a familiar line of decisions since the year 1724, has pronounced against the right of a third person, not a party to a contract, to maintain an action of assumpsit upon the contract, even though it was made for his benefit. 3

Upon examination of these cases, the following questions are presented:

Is there any substantive right by which the beneficiary of a contract can enforce a part from the action of assumpsit? Is the denial of the beneficiary's right in the cases of assumpsit due to a judicial denial of the existence of such a substantive right; or is the inability of the beneficiary to

This Essay was first published in the American Law Register (now the University of Pennsylvania Law Review), Vol. XLIII, N. S. (LII, O. S.), pp. 764-779, Vol. XLIV, N. S. (LIII, O. S.), pp. 112-127 (1904-5); a continuation, in id. Vol. XLVII, O. S. (LVI, N. S.), pp. 73-87 (1908) is not here reprinted. Changes and additions have been made by the author for the present reprint.

2 Professor of Law in the University of Pennsylvania. A. B. 1887, University of Pennsylvania, LL. B. 1903, Temple College.

Other Publications: Leading Cases on the Fourth Section of the Statute of Frauds, 1907; Life of Chief Justice Doe of New Hampshire (in Lewis' Great American Lawyers), 1908. Cases on the Simple Con-、 tract of Debt at the Common Law, 1907.

Crow v. Rogers, 1 Strange, 592 (1724); Price v. Easton, 4 Barn. and Ad. 433 (1833); Tweddle v. Atkinson, 1 B. and S. 393 (1861); Empress Engineering Co., 16 Chancery Div. 125, 129 (1880), Re Rotherham Alum and Chemical Co., 25 Ch. Div. at page 111 (1883); Cleaver v. Mutual Reserve Fund Life Association, 1 Q. B. 147 (1892).

recover due in reality to certain technicalities of procedure or principles of substantive law incident and peculiar to the action of assumpsit itself?

If, apart from assumpsit, there is such a substantial right of a beneficiary, what is its basis, its scope, and its limitations, and in what formal procedure or actions is it enforceable? At the present day, "Whatever disadvantages the English law on the question may have, it has at least the merit of definiteness. A beneficiary has no legal rights."" That the modern English judicial conscience finds satisfaction in this conclusion may be seen from the exclamation of Crompton, J.: "It would be a monstrous proposition to say that a person was a party to the contract for the purpose of suing upon it for his own advantage, and not a party to it for the purpose of being sued." But why strous," if conformable to the contractors' intent?

2

66

mon

That the modern English courts in preventing this monstrosity believe they have not sacrificed any cherished English judicial principle appears from the repeated assurances of the modern English judges that the beneficiary cannot recover because he is "a stranger to the consideration," and because" he is not a party to the contract.” 3

Unfortunately, for judicial uniformity, the monstrosity of the proposition that a person may be entitled to sue on a contract without being himself liable to suit thereon, never shocked any judicial conscience in England until 1861.

It can be shown (conclusively, I submit), that outside of assumpsit this so-called "monstrosity " has been the law of England for five hundred years.

The line of approach in investigating the common law on this subject, lies in challenging and demanding proof for the propositions so often asserted, that:

(1) No one can recover on a contract except the person who furnishes the consideration.

(2) No one can recover on a contract except the promisee.

1"Contracts for the Benefit of a Third Person," by Samuel Williston, xv Harvard Law Review, 774, (1902).

2 Tweddle v. Atkinson, 1 Best and Smith, 398 (1861).

3 Price v. Easton, 4 Barn. and Ad. 433 (1833); Thomas v. Thomas, 2 Ad. & El. (N. S.) 851, 859 (1842).