E.   Agreement and Consideration

While God requires man to perform all vows or promises and holds man responsible for non-performance, He has not authorized man to exercise total jurisdiction over his fellow man's vows. At common law. only those promises that constituted a contract were enforceable. As previously noted, Blackstone provided a 3 part definition of contract as follows: "An agreement, upon sufficient consideration, to do or not to do a particular thing."

While Blackstone did not spell out in detail what constituted an "agreement" he did give his readers two synonyms: "A mutual bargain" or "convention." Later the terms "offer" and "acceptance" were adopted by common law judges and scholars to combine the first element, agreement, with the third element, "to do or not to do a particular thing." Thus, in their textbook on contracts Calamari and Perillo define an "offer" as "a promise; a commitment to do or refrain from doing some specified thing in the future." J. Calamari and J. Perillo, Contracts, 28 (1977). "An acceptance is a voluntary act of the offeree whereby he exercises the power conferred upon him by the offer, and thereby creates the set of legal relations called a contract." Corbin, "Offer and Acceptance, and some of the Resulting Legal Relations," 26 Yale L.J. 169, 199 (1917). If the offer calls for an exchange of promises or an act, the acceptance to be valid at common law had to conform to the exact terms of the offer. Otherwise, it was a counter-offer that required acceptance by the original offeror. J. Calamari and J. Perillo, Contracts, 68 (1977).

In addition to the requirement of proof of agreement, the common law, also required proof of consideration. Blackstone defined consideration as the "reason which moves the party contracting to enter into a contract." Proof of consideration was essential before the common law would recognize an agreement to be legally binding: "A consideration of some sort or other is absolutely necessary to the forming of a contract, that a nudum pactum or agreement to do or pay any thing on one side, without any compensation on the other, is totally void in law; and a man cannot be compelled to perform it." W. Blackstone, Commentaries, 445 (1769).

While the concept of consideration has been refined and attacked since Blackstone wrote his Commentaries, it still remains an essential ingredient of an enforceable contract. See J. Calamari and J. Perillo, supra, at 132-136.

A simple case that illustrates these three essential ingredients is the following:

SHELDON V. GEORGE
132 App.Div. 470, 116 N.Y.S. 969 (1909)

This action was brought to recover the amount of a reward offered by defendant in the following advertisement or notice published by his direction in the Watertown Daily Times, a newspaper published in the city of Watertown, where both parties to this action then, and at the time of the trial of the action, resided: "$100.00 reward for the return of a pair of diamond earrings lost from my store during the past two weeks. No questions asked. S. L. George, the Jeweler."

The complaint alleged publication of this advertisement by defendant, and the return by plaintiff to defendant, in pursuance of and in compliance with the terms upon which the reward was offered, of two unmounted diamonds, which were the same diamonds for which the reward was offered; that defendant retained said diamonds, and plaintiff made no claim to the ownership thereof. Demand and refusal of payment of the reward was also alleged. Defendant's answer admits the publication of the notice of reward and delivery to him by plaintiff of the diamonds advertised for by him, and then he retained the same. Then follows a general denial. For a second and separate defense he alleges in effect that the two diamond earrings were stolen from him by one Katz, who thereafter sold the diamonds which were in said earrings to plain,tiff. That after plaintiff had been informed that the diamonds so purchased were stolen and were the property of defendant, and he had been requested to surrender them to defendant and had refused so to do, he having been informed that defendant was about to institute legal proceedings to discover the whereabouts of the diamonds, delivered them to defendant, at the same time denying that the diamonds were the property of defendant, and denying that he could identify them ar.d leaving them in defendant's possession--this without waiving any rights he might have as a purchaser thereof. He further alleges that the diamonds were then taken from his possession by the officers of the law of Jefferson county and held by them till the conviction of Katz, and were thereafter returned to him by said officers. He further alleges that the diamonds were not returned by plaintiff pursuant to the reward offered by defendant.

Robson, J. At the close of all the evidence defendant renewed his motion for a nonsuit, made at the close of plaintiff's evidence, and plaintiff moved for direction of verdict for the amount claimed in the complaint. The court directed a verdict for defendant, and the verdict was duly rendered and taken pursuant to the direction . . ..

While there are not many seriously controverted questions of material facts presented by the evidence in the case, yet it did become material to determine whether, in the first instance at least, the plaintiff's return of the diamonds was voluntary, or by reason of the fact that he feared the result of legal proceedings, which he had been advised were contemplated and about to be begun by defendant which might disclose to defendant the fact that plaintiff then had the lost diamonds in his possession.

To establish his contract with defendant by which the latter agreed to pay him the offered reward, he must necessarily prove a return of the diamonds to defendant voluntarily on his part, and in reliance upon the terms upon which the reward was offered. If the plaintiff returned the diamonds under compulsion, or even if he did so without knowledge of the offer, then no contract exists, and no liability of defendant to pay him the reward is created by the simple fact that defendant received the diamonds from plaintiff. Vitty v. Eley, 51 App.Div. 44, 64 N.Y.S. 397. As was said in the case last cited, the contract element would be destroyed if the service for which the reward was offered was not voluntary on the part of the one claiming it. The court was amply warranted in finding that plaintiff did not return the diamonds voluntarily, but as a result of the pressure exerted by the witness Bradbury, and in order to avoid the compulsory disclosure of his possession of them in legal proceedings, which he knew, or had been informed, were about to he instituted. The fact that a person who performs services for which the reward was offered must have knowledge of the offer before the services are rendered in order to establish a contract for payment of the reward to such person is well recognized in this state. Fitch v. Snedaker, 38 N.Y. 248, 97 Am.Dec. 791; Howland v. Lounds, 51 N.Y. 604, 10 Am.Rep. 654. It has lately been emphasized in a decision in the Texas Supreme Court. Broadnax v. Ledbetter, 100 Tex. 375, 9 S.W. 1111, S L.R.A., N.S., 1057.

While it is perhaps not material to discuss the question whether the court would have been warranted in finding that the return of the diamonds was made before plaintiff had any knowledge of the offered reward, it is apparent that the first reference to the reward which he made to defendant was in the letter to defendant in which he demanded its payment, written nearly a month and a half after the diamonds had been returned and the thief, Katz, apprehended. His testimony as to the exact time he first knew of the fact that a reward was offered is also very hazy and uncertain, although he says he knew of it before he returned the diamonds. From the whole evidence, even accepting plaintiffs own version of the transactions, I think the conclusion is inevitable that plaintiff returned the diamonds, not with the intention of complying with defendant's offer of the reward, but solely to escape the trouble promised him if the threatened legal proceedings were begun, and with the further expressed intention of claiming the diamonds as his own by purchase, provided defendant failed to establish conclusively the identity of those returned with those he had lost. Plaintiff's subsequent concession in his letter of February 24th, in which he demanded payment of the reward, that defendant had established the validity of his claim to the diamonds as those he had lost, does not help in establishing that the return of the diamonds was in pursuance of the offer of reward and in reliance thereon. The offer was for the return of the diamonds; necessarily a voluntary return, as we have seen. The diamonds were returned as a result of compulsion, rather than voluntarily. The subsequent admission of defendant's title to them did not in any way c]lange the character of the original act in returning them. The return was a fixed fact at the first interview. That return did not entitle plaintiff to the reward. The diamonds having been once returned, a second return was not possible. If plaintiff was entitled to the reward, he became entitled to it by complying with the terms of the offer. This he did not do. His ultimate admission of defendant's ownership was not a part of the original return. Its effect could only be to relieve the defendant from the necessity of proving actual ownership of the property. It is perhaps true that, without relinquishing his right to claim the promised reward, a finder of lost property may return it to the owner upon a condition that the person to whom the return is made make proof of his ownership. Wood v. Pierson, 45 Mich. 313, 7 N.W. 888. But the finder's right to the reward depends upon the original return, not upon the owner's compliance with the condition the finder has imposed for his own protection. . ..

The judgment should be affirmed, with costs. All concur.

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QUESTIONS

1)   What constituted the offer? Was there a valid acceptance? Why or why not?

2)   What is root meaning of the word, "offer?" In Noah Webster's 1324 dictionary, he noted that the word was derived from the Latin word, "offero," which means "to bring." Thus, the literal English definition: "To bring to or before; hence to present for acceptance or rejection." One legal scholar has traced the word, "offer", to the "exclusively religious term," viz., an offering to God. D. Mellinkoff, The Language of the Law, 50 (1963). What parallels, if any are there between the offer of a reward in the Sheldon case and the following passages in Genesis:

a)   "And in the process of time it came to pass, that Cain brought of the fruit of the ground an offering unto the Lord. And Abel, he also brought of the firstlings of his flock and of the fat thereof. And the Lord had respect unto Abel and to his offering: But unto Cain and to his offering he had not respect. And Cain was very wroth, and his countenance fell. And the Lord said unto Cain, Why art thou wroth? And why is thy countenance fallen? If thou doest well, shalt thou not be accepted? Genesis 4:3-7

b)   Now the Lord has said unto Abram, Get thee out of thy country, and from thy kindred and from thy father's house, unto a land that I will shew thee: And I will make of thee a great nation, and I will bless thee, and make thy name great; and thou shalt be a blessing: And I will bless them that bless thee, and curse him that curseth thee: And in thee shall all families of the earth be blessed. So Abram departed, as the Lord had spoken unto him. . . ." Genesis 12:1-4.

3)   Are these parallels just coincidences? Or do man's relationships with God set the pattern for man's relationships with his fellow man because man is created in God's image? Consider for example, God's dealings with Abram and the common law rule that an acceptance that changes even the most trivial detail of an offer operates as a counter-offer and thereby a rejection of the offer. In Chapter 15 the Lord promised to give unto Abram's "seed" the land of the Kenites, et al. Genesis 15:18-21. Part of God's offer included the condition that the "seed" would be biologically Abram's. Genesis 15:2-4. Abram "rejected" this offer because he sought to accept it through his son, Ishmael, by Sarai's maid, Hagar. Genesis 16. Therefore, God renewed his offer, but this time with a more explicit promise that Sarai would bear a Isaac, and that through this son would belong the promised inheritance. firm up this agreement, God called for an act to be done immediately as a token of the new covenant,that Abram circumcise the males in his household. This Abram did and the covenant was finally made effective. Genesis 17.

4)   In this final dealing with Abram, God introduced a "new thing" into the covenant pattern of offer and acceptance. He exacted something from Abram to seal the exchange of God's promise and Abram's acceptance, namely, circumcision. Later, in Abraham's dealings with Abimilech regarding the water well, Abraham was unwilling to rely solely on an exchange of promises to protect his claim to the well. Instead, Abraham, even though he believed that the well was rightfully his, gave to Abimilech "sheep and oxen" and, in addition, "seven ewe lambs":

"Then Abraham set seven ewe lambs of the flock by themselves. And Abimilech said to Abraham, 'What do these seven ewe lambs mean, which you have set by themselves?'And he said, 'You shall take these seven ewe lambs from my hand in order that it may be a witness to me, that I dug this well." Gen. 21:28-30.

After all, if Abimilech was going to cease using the well, it was necessary for Abraham to do something to his detriment. Otherwise, Abimilech's promise would be one-sided. Are these parallels merely speculative, or did the Bible have an impact on the common law of contract? Consider the following passages:

A)   "Sale or exchange is a transaction of property from one man to another, in consideration of some recompense in value: For there is no sale without a recompense; there must be quid pro quo. . . . All civilized nations adopted therefore very early the use of money; for we find Abraham giving "four hundred shekels of silver, current money with the merchant, for the field of Machpelah. . ." (Genesis 23:16) II W. Blackstone, Commentaries, 446 (1769).

B)   There is, in contracts, so much of pure reason, so much that emanates from the essential nature of man, so much that lies at the very foundation of all laws, that students need not hesitate to resort with assurance to the Pandects of Justinian, the pleadings of the Attic orators, the Dwepas and Ratnas of the Hindu code, the numerous texts and commentaries of European lawyers; and the volumes of our own municipal law. These all may be made to greatly illustrate each other; for though different nations may vary the forms and evidences of contracts, their substance in all places, and at all times will be found reposing on essentially the same philosophy, and are created, expounded and enforced by nearly the same elementary principles. D. Hoffman, A Course of Legal Study, 385 (1842).

C)   From obediential obligations, flowing from the will of God, order leads us next to conventional obligations, arising from the will of man, whereby our own will tieth us in that, wherein God hath left us free: For as obediential obligations descend from the principle of obedience to God, and have their rise and reason from his sovereign power to command, and our absolute obligement to obey; so in his gracious goodness, in the greatest part he hath left us free, and hath given power to none to exact or compel us: Yet so as he hath given that liberty in our power, that we may give it up to others, or restrain and engage it, whereby God obliges us to performance, by mediation of our own will: Yet such obligations, as to their original, are conventional, and not obediential.

Again, we must distinguish betwixt promise, pollicitation or offer, paction and contract, the difference amongst which is this, that the obligatory act of the will is sometimes absolute and pure, and sometimes conditional, wherein the condition relates either unto the obligation itself, or to the performance; such are the ordinary conditional obligations, which, though they be presently (upon the granting thereof) binding, and cannot be recalled, yet they are only to be performed, and have effect, when the condition shall be existent: But when the condition relateth to the constitution of the obligation, then the very obligation itself is pendent, till the condition be purified, and till then it is no obligation (I,3,8,supra); as when any offer or tender is made, there is implied a condition, that before it become obligatory, the party to whom it is offered must accept; and therefore an offer by a son, to pay a debt due by his mother, made known to be accepted at such a time, and in such a place, was found not obligatory after the mother's death, unless it had been so accepted, June 24, 1664, Allan contra Collier (I Stair 206; M. 9248; I,3,9,supra; I,10,5-6,infra). So then, an offer accepted is a contract, because it is the deed of two, the offerer and the accepter. J. Stair, The Institutions of the Law of Scotland, 195, 196 (1693).

5)   Two major kinds of contractual relationships are recognized at common law -the bilateral and unilateral contract. One of the great American authorities on contracts, Samuel Williston of Harvard, maintained that, while unilateral contracts came first, the two types of contracts were "fully recognized by the early 17th Century. Williston, Contracts, Section 13 (1920). Despite vigorous criticism the distinction between bilateral and unilateral contracts survives to this day.

The difference between the two types of contracts is as follows:

Every contract involves at least two contracting parties. In some contracts, however, only one party has made a promise and therefore only he is subject to a legal obligation. Such a contract is said to be unilateral. If both parties have made promises, the contract is bilateral.

If A says to B, "If you walk across Brooklyn Bridge, I promise to pay you ten dollars," A has made a promise but he has not asked B for a return promise. He has requested B to perform an act, not a commitment to do the act. A has thus made an offer to a unilateral contract which arises when and if B performs the act called for. If A had said to B, "If you promise to walk across Brooklyn Bridge, I promise to pay you ten dollars," his offer requests B to make a commitment to walk the bridge. A bilateral contract arises when the requisite return promise is made by B.

Is the bilateral/unilateral distinction found in the Bible? Contrast Gen. 21:23-34; Gen. 24:7-9; Gen. 25:33; Gen. 26:26-33; Josh. 2:8-17 with Gen. 28:20-22; Gen. 29-31:13; Numbers 21:2-3; I Sam. 1:11, 20-28.