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Not literally compel even in that case, however, but put the promisor in prison unless he will convey. This remedy is an exceptional one. The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass.
So far as the use of words goes, I am not aware that consideration is distinctly called cause before the reign of Elizabeth; in the earlier reports it always appears as quid pro quo. One of the earliest references to what a promisor was to have for his undertaking was in the action of assumpsit. /1/ But the doctrine certainly did not originate there.
But when the original debtor is the promisor, a second stipulation produces a novation only if it contains something new if a condition, for instance, or a term, or a surety be added, or taken away though, supposing the addition of a condition, we must be understood to mean that a novation is produced only if the condition is accomplished: if it fails, the prior obligation continues in force.
23 If a stipulator and the promisor mean different things, there is no contractual obligation, but it is just as if no answer had been made to the question; for instance, if one stipulates from you for Stichus, and you think he means Pamphilus, whose name you believed to be Stichus. 24 A promise made for an illegal or immoral purpose, as, for instance, to commit a sacrilege or homicide, is void.
If we look at the law as it would be regarded by one who had no scruples against doing anything which he could do without incurring legal consequences, it is obvious that the main consequence attached by the law to a contract is a greater or less possibility of having to pay money. The only question from the purely legal point of view is whether the promisor will be compelled to pay.
13 Formerly, a man could not stipulate that a thing should be conveyed to him after his own death, or after that of the promisor; nor could one person who was in another's power even stipulate for conveyance after that person's death, because he was deemed to speak with the voice of his parent or master; and stipulations for conveyance the day before the promisee's or promisor's decease were also void.
The consequences of a binding promise at common law are not affected by the degree of power which the promisor possesses over the promised event. If the promised event does not come to pass, the plaintiff's property is sold to satisfy the damages, within certain limits, which the promisee has suffered by the failure.
A promise in certain words has a definite meaning, which the promisor is presumed to understand. If A says to B, I promise you to buy this barrel and its contents, his words designate a person and thing identified by the senses, and they signify nothing more.
It has been said that where the contract is unilateral, and its language therefore is all that of the promisor, clauses in his favor will be construed as conditions more readily than the same words in a bilateral contract; indeed, that they must be so construed, because, if they do not create a condition, they do him no good, since ex hypothesi they are not promises by the other party. /1/ How far this ingenious suggestion has had a practical effect on doctrine may perhaps be doubted.
The consequences are the same in kind whether the promise is that it shall rain, or that another man shall paint a picture, or that the promisor will deliver a bale of cotton. If the legal consequence is the same in all cases, it seems proper that all contracts should be considered from the same legal point of view.
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