A promise to carry
might be made and accepted on the understanding that it was mere
matter of favor, without consideration, and not legally binding.
In that case the detriment of delivery would be incurred by the
promisee as before, but obviously it would be incurred for the
sole purpose of enabling the promisor to carry as agreed.
[292] It appears to me that it has not always been sufficiently
borne in mind that the same thing may be a consideration or not,
as it is dealt with by the parties. The popular explanation of
Coggs v. Bernard is, that the delivery was a consideration for a
promise to carry the casks safely. I have given what I believe to
be the true explanation, and that which I think Lord Holt had in
view, in the fifth Lecture. /1/ But whether that which I have
offered be true or not, a serious objection to the one which is
commonly accepted is that the declaration does not allege that
the delivery was the consideration.
The same caution should be observed in construing the terms of an
agreement. It is hard to see the propriety of erecting any
detriment which an instrument may disclose or provide for, into a
consideration, unless the parties have dealt with it on that
footing. In many cases a promisee may incur a detriment without
thereby furnishing a consideration.
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