It may be doubted whether a
promise to make a gift of one hundred dollars would be supported
by a promise to accept it. But in a case of mutual promises
respectively to transfer and to accept unpaid shares in a railway
company, it has been held that a binding contract was made. Here
one party agrees to part with something which may prove valuable,
and the other to assume a liability which may prove onerous. /1/
But now suppose that there is no element of uncertainty except in
the minds of the parties. Take, for instance, a wager on a past
horse-race. It has been thought that this would amount to an
absolute promise on one side, and no promise at all on the other.
/2/ But this does not seem to me sound. Contracts are dealings
between men, by which they make arrangements for the future. In
making such arrangements the important thing is, not what is
objectively true, but what the parties know. Any present fact
which is unknown to the parties is just as uncertain for the
purposes of making an arrangement at this moment, as any future
fact. It is therefore a detriment to undertake to be ready to pay
if the event turns out not [305] to have been as expected. This
seems to be the true explanation why forbearance to sue upon a
claim believed the plaintiff to be good is a sufficient
consideration, although the claim was bad in fact, and known by
the defendant to be bad.
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