If, on
the other hand, the words did not warrant the understanding that
the service was to be paid for, the service was a gift, and a
past gift can no more be a consideration than any other act of
the promisee not induced by the promise.
The source of the error can be traced partially, at least, in
history. Some suggestions touching the matter were made in the
last Lecture. A few words should be added here. In the old cases
of debt, where there was some question whether the plaintiff had
showed enough to maintain his action, a "contract precedent" was
spoken of several times as raising the duty. Thus, where a man
had granted that he would be bound in one hundred shillings to
pay his servant on a certain day for his services, and for
payments made by the servant on his account, it was argued that
there was no contract precedent, and that by parol the party is
not obliged; and, further, that, so far as appeared, the payments
were made by the servant out of his own head and at no request,
from which no duty could commence. /1/
So when debt was brought on a deed to pay the plaintiff ten
marks, if he would take the defendant's daughter to wife, and it
was objected that the action should have been covenant, it was
answered that the plaintiff had a contract precedent which gave
him debt.
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