SUCCESSIVE PROMISES OF SAME PERFORMANCE. 35 been held to be consideration for a promise." This reasoning is adopted by Pollock in the later editions of his treatise.^ It seems impossible to dispute Anson's criticism of the theory advanced by Pollock and Professor Langdell, but it has not been al- ways observed that the same criticism may be made in the case of every bilateral contract if the test of the sufficiency of consideration is defined, as it usually is, as a benefit conferred upon the promisor or a detriment suffered by the promisee. To enter into a binding obligation to do or not to do anything whatever is always a detri- ment, and on the other hand, unless a promise imposes an obliga- tion, no promise whatever can be considered a detriment. It is, therefore, assuming the point in issue to say a promise is a detrimentii because it is binding. There are but two ways out of the difficulty. The first is to say that for the purpose of testing the sufficiency of consideration the law assumes that the promise is binding, or, in other words, mutual promises, unless merely repetitions of previous obligations to the same person, are always sufficient consideration for each other. The other way is to revise slightly the test of con- sideration in a bilateral contract, seeking the detriment necessary to support a counter-promise, in the thing promised, and not in the promise itself If the first way is adopted, the result is that not only is a promise to do something which the promisor is then bound by contract with a third person to do, a good consideration, but so also is a promise to receive a pure benefit, a promise to forbear a ground- less suit against a third person, and a promise to refrain from com- mitting a tort against a third person. These consequences seem sufficient reason for discarding this theory. If a promise to receive a pure benefit, for instance a gift, is sufficient consideration for a promise to give it, an easy way is offered to make, in effect, a valid gift without delivery ; and it may well be doubted whether the courts would sanction such a result.^ A mutual agreement to rescind a unilateral obligation, which is much the same thing as a promise to give, is, it is well settled, ineffectual.^ There is nothing in the cases relating to forbearance and promises of forbearance to warrant the supposition that the case would be treated differently when the groundless suit to be forborne is against a third person, and an in- 1 4th ed., pp. 178, 179, • Holmes,' Common Law, 304. « Foster v. Dawber. 6 Ex. 839, 851 ; William.s v. Stern, 5 Q. B. D. 409 ; Westmore- land V. Porter, 75 Ala. 452 ; Crawford v. Millspaugh, 13 Johns. 87 ; Kidder v. Kidder, 33 Pa. 268.
