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2 B.U. L. Rev. 174 (1922)
Modern History of the Doctrine of Consideration

handle is hein.journals/bulr2 and id is 174 raw text is: THE MODERN HISTORY OF THE DOCTRINE
(Continued from April)
(iii) The fact that the lawyers considered that benefit to the
promisor-defendant was, equally with detriment to the promisee-
plaintiff, a valid consideration, tended to obscure the fact that such
benefit ought only to have been considered a consideration if that
benefit moved from and so was a detriment to the promisee-plaintiff.
Rolle C. J.'s judgment in Starket v. Mill' exhibits clear traces of this
confusion. We shall now see that the confusion so caused has tended
to obscure the application of the rule that consideration may be exe-
cuted or executory, but cannot be past.
The terms executed and executory are obviously apt terms to
describe the cases when the consideration for a promise has been ful-
filled and where it has not. They were applied to express this differ-
ence between considerations in 1597, though not in connection with
the law of contract;4 and, as soon as the scope of assumpsit was ex-
tended so that by it wholly executory contracts could be enforced,
they begin to be used to express this difference between the kinds of
consideration which will validate a simple contract.5
Before this date, however, the lawyers had begun to have some
perception of the difference between what we now call an executed
and a past consideration. Assumpsit lay upon a contract where a
'All rights of copyright and republication reserved by W. S. Holdsworth.
2Of Lincoln's Inn, London; Fellow of St. John's College and All Souls Reader
in English Law in the University of Oxford; an eminent and very distinguished
authority on the jurisprudence and History of The English Common Law, who,
by his monumental History bf English Law (published in 1903) has made his
debtor all jurists in both Great Britain and the United States. The numerous
and erudite articles of Dr. Holdsworth, which during the last decade have ap-
peared in the leading British and American law reviews, are well known to
members of the legal profession in both hemispheres.-ED.
'(1651) Style, 296.
4Barwick's Case, 5 Co. Rep. at f 94a.
-5In Sidenham and )Vorlington's Case (1585), 2 Leo. at p. 225 Periam J. uses the term
executed in the sense of past; and in Docket v. Voyal (1602) Cro. Eliza. 885 the terms
past and executed are used as synonymous; but in Lampleigh v. Brathwait (1616),
Hob. at p. 106 an executed consideration which is incorporated with the promise is
distinguished from a past consideration which, not being so incorporated, does not
validate a contract; the fact that the term 'executed' then and later was used as a
synonym for 'past' has tended to confuse this topic; cp. Street, op. cit. ii, 83.

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