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For instance, a promise to pay for clothes if made to the customer's satisfaction, has been held in Massachusetts to make the promisor his own final judge. /1/ So interpreted, it appears to me to be no contract at all, until the promisor's satisfaction is expressed.
The oldest cases, going on the notion of benefit to the promisor, said that it could not be, for it was a trouble, not a benefit. /2/ Then take it from the side of detriment. The delivery is a necessary condition to the promisor's doing the kindness, and if he does it, the delivery, so far from being a detriment to the promisee, is a clear benefit to him. But this argument is a fallacy.
There is no obligation, although there may be an offer or a promise, and hence there is no relation between the parties which requires discussion here. But some conditions seemingly arising out of a contract already made are conditions of this sort. Such is always the case if the condition of a promise lies within the control of the promisor's own will.
2 When, however, what is stipulated for is permission to do some specific act, that permission cannot extend beyond the person of the promisee: for instance, if a slave stipulates for permission to cross the promisor's land, he cannot himself be denied passage, though his master can.
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.
A statutory requirement of a memorandum in writing would be satisfied by a written statement of the promise as made, because to require more would be to run counter to the ordinary habits of mankind, as well as because the statement that the effect of a contract is the assumption of the risk of a future event does not mean that there is a second subsidiary promise to assume that risk, but that the assumption follows as a consequence directly enforced by the law, without the promisor's co-operation.
In one sense, everything is form which the law requires in order to make a promise binding over and above the mere expression of the promisor's will. Consideration is a form as much as a seal.
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