Imágenes de páginas

ing space and the displaying of advertisements by defendant on its railway stations, depots, rights of way, cars and fences.” The question in the case was whether this was sufficient consideration for defendant's promise. The court held that it was not, because the plaintiff did not give up anything to which he had a legal right, that is, there was no legal detriment, “because the idea was not new nor exclusively within the plaintiff's knowledge, but was perfectly obvious and well known to all men, and it could have no market value so as to form the consideration for a contract." Yet the defendant received actual benefit, if not legal benefit. Hence the court held that benefit alone could not be sufficient consideration.

A majority of text-writers have taken the position, not only for themselves but as the position of the courts, that benefit to the promisor is not sufficient consideration for a promise. 58

What, then, is the law as to whether or not benefit to the promisor may be consideration for his promise? Historically there seems to be no argument for it. The decisions against it are overwhelming in number as compared with those in its support. The term has not even been acceptably defined. Yet the books are full of dicta to the effect that it may amount to consideration. Judges seem never to be able to find any benefit sufficient to be called consideration but they always seem to hold out the hope that sometime they may be able to do so. Some states have given these dicta the force of law by incorporating them into statutes. A few recent writers have begun to champion the doctrine. Under such circumstances, is benefit to the promisor consideration, or is it not consideration, in AngloAmerican law? Again, it is submitted, that no one knows. Indiana University

Hugh E. Willis. School of Law

(To be Concluded.)

** Langdell, Contracts, Sec. 64; Pollock, Contracts (3d ed.), pp. 9, 185, 189; Harriman, Contracts, Sec. 91; Elliott, Contracts, Sec. 203; II Street, Found. of Leg. Lia., pp. 67-69, 110.

“The principle, however, must be considered established that the element which alone gives efficacy to the assumptual promise is detriment tv the promisee." II Strect, Found. of Leg. Lia., 68.

The publication in volume form of Professor Hohfeld's essays in the field of jurisprudence and law * makes it opportune and desirable to undertake a discussion and estimate of this gifted scholar's contribution to legal science. The untimely death of Professor Hohfeld removed from the scholastic-legal fraternity a man of great promise and no mean achievement. On every page of his writings is evident the painstaking analysis of a keen mind, eager to penetrate to the reality of things legal and refusing to abide in the easy comfort of a fiction, no matter how well recognized and time-worn.

It is impossible in a brief paper to discuss the many topics treated in the collection of essays in the volume. But the main contribution of a somewhat original nature that established the reputation of Professor Hohfeld as a constructive thinker in matters legal is no doubt in the field of analytical jurisprudence, and is contained in the two articles at the head of the volume, entitled, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” which title the editor properly gives to the volume as a whole. For in a sense the subsequent articles dealing with specific legal questions are written sub specie, so to speak, horum articulorum primorum, as tests and applications of the theoretical analysis contained in the latter.

The fundamental questions that are raised in the mind of a critic are, has Professor Hohfeld shown that the two correlative terms "right" and "duty," with which most legal writers and jurists are content in their analysis of legal relations and treatment of cases, are inadequate?

Secondly, assuming that this question is answered in the affirmative, is the analysis of Professor Hohfeld through the new terms which he introduces more adequate and satisfactory? And finally, granted that as a matter of legal logic Professor Hohfeld's analysis is more thorough-going and more minute, is it practically of much value in the decision of legal questions,

*Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays, by Wesley Newcomb Hohfeld, edited by Walter Wheeler Cook--New Haven, 1923, pp. 420.

and has it materially assisted Professor Hohfeld himself in his treatment of such questions as exhibited in the legal articles in the volume ?

According to Holland, "right" is the one sufficient term which is at the basis of law. The proximate purpose of the law is to create and enforce, to declare and protect, “rights.” And these rights so declared and protected by law, i. e., “legal rights,” denote in the last instance, pragmatically speaking, the ability of the person or persons having such rights to control the acts or forbearances of other persons, with the help of the state force. This makes the existence of at least two persons necessary for the existence of a right. Given A and B, if A has a right, then B's acts, so far as the right of A extends, are not free, and we speak of B as being under a “duty.” But the word “duty” does not really add anything substantial, it merely views the right from another angle. And hence either rights or duties may be put at the basis of law, though it seems preferable to use the former.

Now there is no doubt, and no one denies, that the generic term “right," as thus defined, is subject to subdivision and differentiation. Thus, what Hohfeld calls "power" may be regarded as a specific kind of right. It will be recalled that we defined “right” as the ability to control the acts of another with the aid of the state force. Now take one instance of what Hohfeld calls power, namely, “the power of a thief having possession of money, but not, of course, the ‘ownership' thereof, to create a good title in a bona fide 'purchaser'” (p. 105). It is clear that this power of the thief is a right, because by virtue of this power he can control the acts of all the world in relation to the money in question. The specific character of a power is that it denotes primarily, as used by Hohfeld, the ability to control legal relations, and through these to control acts, whereas rights which are not also powers denote directly the control of acts. The relation between right and power as here suggested may be illustrated by the relation between "word” and “noun.” Every noun is a word, but not every word is a noun. Ultimately both denote realities of the natural and human universe, but the


difference is that while "word,” if we omit grammatical and other technical terms, denotes the realities directly, “noun” (and the same thing applies to "verb," "adjective,” etc.) denotes primarily a certain grammatical relation, or rather a word of a certain grammatical type, and secondarily a physical reality. Power should therefore be considered as a species of the genus right, rather than as a species co-ordinate with right, as Hohfeld regards it. For there is no doubt that the two have something in common (even in Hohfeld's definition of right), which is, for purposes of jurisprudence, more important than that in which they differ. But Hohfeld is left without a generic term, which is at the very basis of the entire science. The term “jural relation” will obviously not do. Hohfeld himself says, “the strictly. fundamental legal relations are, after all, sui gencris; and thus it is that attempts at formal definitions are always unsatisfactory, if not altogether useless” (p. 36). It is clear from this that Hohfeld has no such generic conception at the basis of his jurisprudence as we defined in connection with the term “right.” This would seem to be fatal to the science of jurisprudence. Assuming, then, that we are correct in using the term “right” as the generic term, and power as a species, as man is a species of the genus animal, the next question is, are there other species, and what are they? Hohfeld adds “immunity" as another fundamental legal relation, and defines it as the correlative of disability (= no power), and the opposite, or negative, of liability. To illustrate, if the thief has no power to give good title to a purchaser of the horse he stole, then the owner is not liable to have his ownership divested, is immune from the thief's power, and hence is said to have an immunity. It does not seem to me that we have here a new jural relation. It is still a phacet of the power relation with which we are dealing. If A has a power in relation to B, B has a liability. This is B's side of the power relation. If A has no power in relation to B, B has an immunity. This is B's side of the no-power relation. No one under the old terminology would make right and no-right, duty and no-duty, four legal relations. There is only one, namely, the right-duty relation, which may be or not be.

But Hohfeld introduces still another jural relation, which he calls "privilege." I can not find any precise definition of this term, as indeed we have seen that he objects to definitions in these fundamental legal relations as of not much use. We have to gather the meaning of it from its negative and correlative, from a statement of what it is not and from illustrations. We find, then, that a privilege is the correlative of a no-right and the negative of a duty. Therefore if I have a privilege to do anything, say to eat my dinner, it means that no one has a right or claim that I should not eat it, and that I am under no duty to any one not to eat it. And if it is suggested that I may very well be said to have a right to eat my dinner, because everybody else is under a duty to refrain from interference with my eating my dinner, Hohfeld would say that that is a different thing. I do have a right or claim against the world that they shall not prevent my eating my dinner, but that is different from the privilege I have of eating my dinner. Even if no one were under a duty to refrain from preventing my eating my dinner, I would still have the privilege (though not the right) to eat my dinner, so long as I had no duty not to eat it, and no one else had a right that I should not eat it. Or to quote Hohfeld's own words (substituting for the example of the dinner above given, that of a salad owned by A, B, C and D): “A, B, C and D,” says Hohfeld, “being the owners of the salad, might say to X: 'Eat the salad, if you can; you have our license to do so, but we don't agree not to interfere with you.' In such a case the privilege exists, so that if X succeeds in eating the salad, he has violated no rights of any of the parties. But it is equally clear that if A had succeeded in holding so fast to the dish that X couldn't eat the contents, no right of X would have been violated” (p. 41). This example brings out clearly the essential nature of privilege as Hohfeld understands it.

There are two objections to this point of view. In the first place, assuming that such a relation as just illustrated has a place in the law, it is fundamental and requires a specific technical term only if it can not be expressed completely in the terms we already have. Otherwise we are merely encumbering our

« AnteriorContinuar »