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The natural question is, what the promisor was to have for his promise. /2/ It is only by analysis that the supposed policy of the law is seen to be equally satisfied by a detriment incurred by the promisee.
On the same principle, it is believed that, whenever the obligation is to be entered into by a tangible sign, as, in the case supposed, by letter containing the return promise, and the consideration for and assent to the promise are already given, the only question is when the tangible sign is sufficiently put into the power of the promisee.
For instance, take a promise to convey land within a certain time, a court of equity is not in the habit of interfering until the time has gone by, so that the promise cannot be performed as made. But if the conveyance is more important than the time, and the promisee prefers to have it late rather than never, the law may compel the performance of that.
But the general language of Roman law takes a different turn; it always regards the contract, if we may so speak, from the point of view of the promisee; in speaking of a party to a contract, it is always the Stipulator, the person who asks the question, who is primarily alluded to.
And even though the specific thing for which the promisee sues be of little or no value, it is still an overclaim: for it is often easier for a debtor to pay what is of greater value than what is actually demanded of him. Such were the rules of the older law, which, however, has been made more liberal by our own and Zeno's statutes.
26 A stipulation for a conveyance this year, or this month, cannot be sued upon until the whole year, or the whole month, has elapsed: 27 and similarly the promisee cannot sue immediately upon a stipulation for the conveyance of an estate or a slave, but only after allowing a sufficient interval for the conveyance to be made.
It was the promisee who, in the character of stipulator, put all the terms of the contract into the form of a question, and the answer was given by the promisor. "Do you promise that you will deliver me such and such a slave, at such and such a place, on such and such a day?" "I do promise."
Promises which are wholly gratuitous are void; because, being neither a benefit to the promiser, nor an injury to the promisee, they are not regarded in law as a valuable consideration.
But neither the contract nor the implied condition calls for the existence of the facts as to which the false representations were made. They call only for the absence of certain false representations. The condition is not that the promisee shall be a certain other B, or that the contents of the barrel shall be mackerel, but that the promisee has not lied to him about material facts.
That is, as it is commonly explained, unless the promisee has either conferred a benefit on the promisor, or incurred a detriment, as the inducement to the promise. It has been thought that this rule was borrowed from Roman law by the Chancery, and, after undergoing some modification there, passed into the common law. But this account of the matter is at least questionable.
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