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legal_language:ex_nudo_pacto_non_oritur_actio_204129122018

Ex nudo pacto non oritur actio

From a nude contract, i.e. a contract without consideration, an action does not arise.

This refers to a parol or simple contract, and whether by word of mouth or writing ; but not to a contract under seal, which latter does not, in the absence of fraud or such like, require any consideration to support it. The consideration sufficient to support a simple contract is, briefly, some benefit to the defendant, or some detriment to the plaintiff, moving from the plaintiff. And this consideration need not of necessity be money, goods, or such like ; but it may be a consideration proceeding from nature : as, if a man make a contract with another, that if he will take his daughter to wife he will give him 20l. ; in this case, if he take her to wife he shall have an action for the 20l. ; and this out of regard for nature.

A nude contract is stated to be : where a man promises another to give him a sum of money on such a day ; to pay the debt of another ; to take less than the full amount of his debt ; or to give time for payment, and nothing is given as the consideration for such promises. These are called naked promises, and no action will lie for their breach, because nothing is given why they should be made. So, if a man promise another to' keep for him safely to such a time certain goods, and afterwards refuse to take them ; or to do for him some other service ; there no action lies against the party promising for refusing ; for, if there is no consideration for the promise, there is no obligation to perform it.

In all such promises to give a thing, or to do a service, there must be a transfer of possession of the gift, or a performance of the service, to make the promise complete ; otherwise they are nuda pacta, and cannot be enforced at law. The transfer of property by gift must be by deed, or actual delivering of possession, or it is nudum pactum.

The performance of an act which the party promising is under legal obligation to perform is no consideration for a promise ; as a promise of reward to a sheriff for executing a writ, or to a witness to give evidence at a trial.

On the other hand, any act done as the consideration for the promise, and which the party doing is under no legal obligation to perform, whereby the promisor has obtained some benefit or advantage, or whereby the party to whom the promise is made has sustained some loss or inconvenience, is sufficient to render the promise obligatory, and to sustain an action at law. As, where the defendant promised a reward to whoever would give information leading to the conviction of a thief, and the plaintiff, a police officer in the district where the offence was committed, gave that information, he was held entitled to recover. So, an alleged promise to marry was held a sufficient consideration in equity to entitle a plaintiff to a decree for a specific performance of a contract to pay an annuity. And where a person wanting to get rid of his liability upon some shares in a public company, and valueless, agreed without any consideration to transfer them to another, the contract was held to be binding. And so, also, there are some contracts which, though nuda pacta of them- selves, are perfected and made obligatory by mutability of obligation, as the agreement by creditors to take a composition, or a mutual agreement to marry.


Plowd. Com. 305 ; Doo. & Stud. lib. 2, cap. 24 ; 1 Roll. R. 433 ; Cro. 0. 194; Shepp. Touch. 224, 225; 5 Co. 117; Lampleigh v . Braithwaite, Hob. 105 ; Sharr v. Pitch, 19 L. J. 113, Ex. ; Cooper v. Phillips, 1 C. M. & R. 649 ; Clay v. Willis, 1 B. & C. 364 ; Boothby v. Snowden, 3 Camp. 475 ; Cheadle v. Kenward, 3 De G-ex & S. 27 ; England v. Davidson, 11 A. & E. 856 ; Lockhart v. Barnard, 15 L. J. 1, Ex. ; Keenan v. Hadley, 10 L. T. (N.S.) 683.


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Created on 2020/10/19 23:15 by • Last modified on 2020/11/07 18:33 (external edit)