The detriment may be nothing
but a condition precedent to performance of the promise, as where
a man promises another to pay him five hundred dollars if he
breaks his leg. /2/
The courts, however, have gone far towards obliterating this
distinction. Acts which by a fair interpretation of language
would seem to have been contemplated as only the compliance with
a condition, have been treated as the consideration of the
promise. /3/ And so have counter promises in an agreement which
expressly stated other matters as the consideration. /4/ So it
should be mentioned, subject [293] to the question whether there
may not be a special explanation for the doctrine, that it is
said that an assignment of a leasehold cannot be voluntary under
the statute of 27 Elizabeth, c. 4, because the assignee comes
into the obligations of the tenant. /1/ Yet the assignee's
incurring this detriment may not be contemplated as the
inducement of the assignment, and in many cases only amounts to a
deduction from the benefit conferred, as a right of way would be,
especially if the only obligation is to pay rent, which issues
out of the land in theory of law.
But although the courts may have sometimes gone a little far in
their anxiety to sustain agreements, there can be no doubt of the
Principle which I have laid down, that the same thing may be a
consideration or not, as it is dealt with by the parties.
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