The Elements of Politics

Henry Sidgwick

Chapter VI


§6. So far I have examined the conditions under which legal validity should be given to agreements in which both parties receive some utility. It will be evident that the limitations expedient in this case should also be applied---so far as they are applicable---to one-sided transfers of utility: but it may be questioned whether the legal enforcement of agreements of this latter kind should not be still further limited; since there is obviously not the same prima facie ground for considering the agreement advantageous to both parties. Still it would clearly interfere with freedom of action if A were not allowed to transfer property to B, merely because there was no commodity or ``valuable consideration'' received by him in return; and it does not at first sight appear why he should not be compelled to render a service to which he has voluntarily bound himself under similar circumstances. There is, however, in our law, a provision that there must, generally speaking, be valuable consideration to make promise enforceable, unless it is made with special formalities; and this provision seems to be approved by the most esteemed living writers on this branch of law. Apparently it is thought that persons should be able to bind themselves by gratuitous promises, but that some special solemnity should be required (1) as a protection of the inconsiderate, and (2) as evidence of the fact that the promise was really made---``preappointed'' evidence. The former argument is obviously an introduction of the ``paternal'' principle; but there seems to me to be force in the latter, from our present point of view, owing to the greater difficulty, in the case of such one-sided promises, of distinguishing a statement of a benevolent intention, not intended as a pledge, from a promise really understood as such on both sides. Still, on the individualistic principle, it seems clear that any adequate evidence of a one-sided promise ought to be accepted, and that it ought to be as valid as a contract in which an exchange is made,---that is, if we are merely considering the claim arising out of such a promise as a single and separate claim. It is another question whether we should enforce a two-sided promise rather than a one-sided one, if we have to choose between the two; e.g. as against an insolvent estate, whether a gratuitous promise should be allowed to rank along with promises given for value. Here, I think, we should certainly decide in the negative on utilitarian grounds: it is much more important that men should rely on bargains than that they should rely on one-sided promises---not to speak of the need of providing that persons practically insolvent should not be able to create ``friendly'' creditors; on similar grounds it is necessary to invalidate even gifts of property made by persons who cannot pay their debts.

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