the Push Toward Assent

• Author: Val Ricks
• Pages: 204-264

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Chapter 5. The Push

Toward Assent

A. A Seal or Writing

PILLANS v. VAN MIEROP (1765)

King’s Bench

3 Burr. 1663

[¶1] [In this case, White, a merchant in Ireland, wished to draw 800l. upon the

credit of Pillans, a Dutch merchant and financier, to pacify White’s creditor,

Clifford. To induce Pillans to trust White’s credit and make the advance, White

proposed to obtain for Pillans the right to collect the money from a London

financier should White default. White proposed Van Mierop as the London

financier, whereupon Pillans honored White’s draft and paid 800l. to Clifford. Both

Pillans and White then wrote to Van Mierop to learn “whether [Van Mierop and his

associates] would accept such bills as they, the plaintiffs, should in about a month’s

time draw upon the said Van Mierop’s * * * * house here in London, for 8001. upon

the credit of White.” Van Mierop wrote a letter back agreeing to stand behind White,

essentially as guarantor. Soon thereafter, White became insolvent, so when Pillans

tried to draw upon his credit with Van Mierop, Van Mierop refused to pay. After a

trial resulted in a verdict for Van Mierop, plaintiff’s counsel moved for a new trial.

Van Mierop’s counsel opposed a new trial on the ground that his promise was

without consideration because Pillans granted credit to White before Van Mierop

promised.]

[¶2] Lord Mansfield asked, if “any case could be found, where the undertaking

holden to be a nudum pactum was in writing.” * * * *

[¶3] [Mansfield continued:] This is a matter of great consequence to trade and

commerce, in every light.

[¶4] If there was any kind of fraud in this transaction, the collusion and mala

fides would have vacated the contract. But from these letters, it seems to me clear,

that there was none. The first proposal from White, was “I to reimburse the

plaintiffs by a remittance, or by credit on the house of Van Mierop”: this was the

alternative he proposed. The plaintiffs chose the latter. Both the plaintiffs and White

wrote to Van Mierop and Company. They answered “that they would honour the

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plaintiffs’ draughts” so that the defendants assent to the proposal made by White,

and ratify it. And it does, not seem at all that the plaintiffs then doubted of White’s

sufficiency, or meant to conceal any thing from the defendants.

[¶5] If there be no fraud, it is a mere question of law. The law of merchants, and

the law of the land, is the same * * * * . We must consider it as a point of law. A

nudum pactum does not exist, in the usage and law of merchants.

[¶6] I take it, that the ancient notion about the want of consideration was for the

sake of evidence only: for when it is reduced into writing, as in covenants,

specialties, bonds, &c. there was no objection to the want of consideration. And the

Statute of Frauds proceeded upon the same principle.

[¶7] In commercial cases amongst merchants, the want of consideration is not

an objection. * * * * I think the point of law is with the plaintiffs.

[¶8] Mr. Justice Wilmot- * * * * I can find none of those cases that go upon its

being nudum pactum, that are in writing; they are all, upon parol.

[¶9] I have traced this matter of the nudum pactum; and it is very curious.

[¶10] He then explained the principle of an agreement being looked upon as a

nudum pactum: and how the notion of a nudum pactum first came into our law. He

said, it was echoed from the civil law: -” Ex nudo pacto non oritur actio.” * * * *

There was no radical defect in the contract, for want of consideration. But it was

made requisite, in order to put people upon attention and reflection, and to prevent

obscurity and uncertainty * * * *.

[¶11] Therefore it was intended as a guard against rash inconsiderate declarations:

but if an undertaking was entered into upon deliberation and reflection, it had

activity; and such promises were binding. Both Grotius and Puffendorff, hold them

obligatory by the law of nations. Grot lib. 2, c. 11, De Promissis. Puffend lib. 3, c.

5. They are morally good; and only require ascertainment. Therefore there is no

reason to extend the principle, or carry it further.

[¶12] * * * * Our own lawyers have adopted exactly the same idea as the Roman

law. Plowden, 308 b. in the case of [Sharington v. Strotton] * * * * mentions it: and

no one contradicted it. He lays down the distinction between contracts or

agreements in words (which are more base,) and contracts or agreements in writing,

(which are more high,) and puts the distinction upon the want of deliberation in the

former case, and the still exercise of it in the latter. His words are the marrow of

what the Roman lawyers had said. “Words pass from men lightly:” but where the

agreement is made by deed, there is more stay: &c. &c. For, first, there is &c. &c.

And, thirdly, he delivers the writing as his deed. “The delivery of the deed is a

ceremony in law, signifying fully his good will that the thing in the deed should

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pass from him who made the deed, to the other. And therefore a deed, which must

necessarily be made upon great thought and deliberation, shall bind without regard

to the consideration.” * * * *

[¶13] Therefore, if it stood only upon the naked promise, its being, in this case,

reduced into writing, is a sufficient guard against surprize; and therefore the rule of

nudum pactum does not apply in the present case.

[¶14] I cannot find, that a nudum pactum evidenced by writing has been ever

holden bad: and I should think it good; though, where it is merely verbal, it is bad;

yet I give no opinion for its being good, always, when in writing. * * * *

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The holding of Pillans v. Van Mierop that a promise in writing needs no

consideration was overruled by the House of Lords in Rann v. Hughes, 7 T.R. 350

n.a,, 101 ER 1014 n.a. (House of Lords 1778), in which Chief Justice Skynner said,

“All contracts are, by the laws of England, distinguished into agreements by

specialty [meaning a sealed writing], and agreements by parol; nor is there any such

third class as some of the counsel have endeavoured to maintain, as contracts in

writing. If they be merely written and not specialties, they are parol, and a

consideration must be proved.”

Questions:

1. Is there a bargain here?

2. Lord Mansfield, Chief Justice of the King’s Bench, was first trained in Scotland,

where the civil law was employed, a derivation of Roman law and more akin to law

used widely on the European continent. The linchpin of contract in civil law has for

many centuries been assent, in line with what we studied earlier about Pufendorf

and Pothier. How important does Mansfield think the consideration requirement is

in this context? What does Mansfield say is the purpose for consideration?

3. How important does Justice Wilmot think consideration is? What does he think

is the purpose of the consideration requirement? Does he think consideration exists

here?

4. Is Pillans still the law?

Note: Pillans is a guarantee case in which the guarantor promises to the creditor. In

our previous guaranty case, Edmonds Case, the guarantor promised to the debtor,

who reciprocally promised to pay the guarantor back. In a typical guarantee case,

the debtor suggests a guarantor, but the guarantor promises to the creditor-guarantee

that the guarantor will pay the debtor’s debts if the debtor does not. What is

consideration for the guarantor’s promise? Typically, courts hold that the creditor’s

loan to the debtor, given in exchange for the guaranty, is consideration for the