CONSIDERATION

The inducement to a contract. The cause, motive, price, or impelling influence which induces a con- tracting party to enter into a contract. reason or material cause of a contract. The Any benefit conferred, or agreed to be con- son, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a prom- ise. Civil Code Cal. § 1605. Any act of the plaintiff from which the defendant or a stranger derives a benefit or advantage, or any labor, detriment, or incon- venience sustained by the plaintiff, however small, if such act is performed or inconven- ience suffered by the plaintiff by the consent, express or implied, of the defendant. 3 Scott, D 250. Considerations are classified and defined as follows: They are either express or implied; the former when they are specifically stated in a deed, contract, or other instrument; the lat- ter when inferred or supposed by the law from the acts or situation of the parties. They are either executed or executory; the E former being acts done or values given be-F fore or at the time of making the contract; the latter being promises to give or do some- thing in future. They are either good or valuable. A good G consideration is such as is founded on natural duty and affection, or on a strong moral obli- gation. A valuable consideration is founded on money, or something convertible into money, or having a value in money, except H marriage, which is a valuable consideration. Code Ga. 1882, § 2741. See Chit. Cont. 7. A continuing consideration is one consist- ing in acts or performances which must nec- essarily extend over a considerable period of time. Concurrent considerations are those which arise at the same time or where the promises are simultaneous. Equitable or moral considerations are de- void of efficacy in point of strict law, but are founded upon a moral duty, and may be made the basis of an express promise. J A gratuitous consideration is one which is K not founded upon any such loss, injury, or inconvenience to the party to whom it moves as to make it valid in law. Past consideration is an act done before the contract is made, and is really by itself no L consideration for a promise. Anson, Cont. 82.

The agreement may be to do anything which is lawful, as to sell or buy real estate or personal property. But the evidence of, the sale of real property must generally be by deed, sealed; and in many cases agree- ments in regard to personal property must be in writing. See STATUTE OF FRAUDS. The construction to be given to agree- ments is to be favorable to upholding them, and according to the intention of the parties at the time of making it, as nearly as the meaning of the words used and the rules of law will permit; 1 Pars. Contr. 7; 2 Kent 555; 1 H. Bla. 569, 614; 30 Eng. L. & E. 479; 5 Hill 147; 40 Me. 43; 10 A. & Ε. 326; 19 Vt. 202. This intent cannot prevail against the plain meaning of words; 5 M. & W. 535. Neither will it be allowed to contravene established rules of law. And that the agreement may be sup- ported, it will be construed so as to operate in a way somewhat different from that intended, if this will prevent the agreement from failing altogether; 22 Pick. 376;9 Wend. 611; 16 Conn. 474; but the mean- ing of the contracting parties is their agree- ment; 101 U. S. 396. Agreements are construed most strongly against the party proposing (i. e., contra proferentem); 6 M. & W. 662; 2 Pars. Contr. 20; 3 B. & S. 929; 7 R. I. 26. See CONTRACTS. The effect of an agreement is to bind the parties to the performance of what they have thereby undertaken. In case of fail- ure, the common law provides a remedy by damages, and equity will in some cases compel a specific performance. The obligation may be avoided or de- stroyed by performance, which must be by him who was bound to do it; and whatso- ever is necessary to be done for the full dis- charge of this duty, although only inci- dental to it, must be done by him; 11 Q. B. 368; 4 B. & S. 556; 48 Iowa 462; 39 Wis. 553; by tender of exact performance accord- ing to the terms of the contract, which is sufficient when the other party refuses to

Consideration has been treated as the very life and essence of a contract; and a parol contract or promise for which there was no consideration could not be enforced at law; 7 W. & S. 817; Plowd. 308; Smith, Lead. Cas. 456; Doc. & Stud. 2, c. 24;8 Call 439; 7 Conn. 57; 1 Stew. 51; 5 Mass. 301; 4 Johns. 235; 6 Yerg. 418; Cooke 467; 6 Halst. 174; 4 Munf. 95; 11 Md. 281; 25 Miss. 66; 30 Me. 412; 140 III. 269; 153 Pa. 281; 89 Ga. 117; 114 Mo. 208; Brooke, Abr. Action sur le Case, 40; such a promise was often termed a nudum pactum (ex nudo pacto non oritur actio), or nude pact. This phrase was undoubtedly borrowed from the Roman law, but its use in Eng- lish law had no relation whatever to its meaning in the Roman; nor is the word pact of the latter in any sense related to the common-law contract. The nudum paс- tum, as appears by the note cited infra from Pollock, had not anciently in England its modern signification of an agreement without consideration in the sense of the maxim quoted. In an elaborate note to Pollock on Contracts 678, Note F., the learned author calls attention to a difference between consideration in the English law and its nearest continental analogies, which difference, he says, has not always been realized. The actual his- tory of the English doctrine is obscure. The most we can affirm is that the general idea was formed somewhere in the latter part of the fifteenth century. At the same time or a little later, nudum pactum lost its ancient meaning (viz.: an agreement not made by specialty so as to support an ac- tion of covenant or falling within one of certain classes so as to support an action of debt), and came to mean what it does now. The word consideration in the sense now before us came into use, at least as a settled term of art, still later. In the early writers, consideration always means the judgment of a court.. The early cases of actions of assumpsit show by negative evidence which is almost conclusive that in the first half of the 15th century, the doctrine of consideration was quite unformed, though the phrase quid pro quo is earlier. But in 1459 there was a case which showed that an action of debt would then lie on any consideration exe- cuted. In the Doctor and Student (A. D. 1530) we find substantially the modern doctrine. So far as the writer of that work knows, he finds the first full discussion of consideration by that name in Plowden's report of Sharington v. Stratton; Plowd. 298. The question of consideration was of importance in the learning of Uses before the statute, and the reflection is obvious that both the general conception and the name of Consideration have had their origin in the court of chancery in the law of uses and have been thence imported into the law of contracts rather than de- veloped by the common-law courts. On this hypothesis, a connection with the Ro- man causa may be suggested with some plausibility. The same writer proceeds to say that in the process thus sketched out some steps are conjectural, and considers that the materials are not ripe for a positive con- clusion and will not be until the unpub- lished records of medieval English law shall be competently edited. See Holmes, The Common Law 253, where a different theory of the origin of consideration is given as being a generalization from the technical requirements of the action of debt in its earlier form. The theory on which the phrase nudum pactum was wrongly applied was that the maxim signified that a gratuitous promise to do or pay anything on the one side, without any compensation on the other, could only be enforced, in the Roman law, when made (or clothed) with proper words or formalities-pactum verbis prescriptis vestitum; Vinnius, Com, de. Inst. lib. 3, de verborum obligationibus, tit. 16, p. 677; Cod. lib. 7, tit. 52. This solemnity it was argued had much the force of our seal, which imported consideration, as it was

The act or process of considering; continuous careful thought; examination; contemplation; deliberation; attention. Let us think with consideration. Sir P. Sidney. Consideration, like an angel, came. Shak. Attentive respect; appreciative regard; -- used especially in diplomatic or stately correspondence. The undersigned has the honor to repeat to Mr. Hulseman the assurance of his high consideration. D. Webster. The consideration with which he was treated. Whewell. Thoughtful or sympathetic regard or notice. Consideration for the poor is a doctrine of the church. Newman. Claim to notice or regard; some degree of importance or consequence. Lucan is the only author of consideration among the Latin poets who was not explained for . . . the Dauphin. Addison. The result of delibration, or of attention and examonation; matured opinion; a reflection; as, considerations on the choice of a profession. That which is, or should be, taken into account as a ground of opinion or action; motive; reason. He was obliged, antecedent to all other considerations, to search an asylum. Dryden. Some considerations which are necessary to the forming of a correct judgment. Macaulay. The cause which moves a contracting party to enter into an agreement; the material cause of a contract; the price of a stripulation; compensation; equivalent. Bouvier.

The thought process of considering, of taking multiple or specified factors into account (with of being the main corresponding adposition). | Something considered as a reason or ground for a (possible) decision. | The tendency to consider others and make allowances for their needs or desires. | A payment or other recompense for something done. | A matter of inducement for something promised; something valuable given as recompense for a promise, which causes the promise to become binding as a contract. | Importance or regard; a claim to notice or attention.