[292] It appears to me that it has not always been sufficiently borne in mind that the same thing may be a consideration or not, as it is dealt with by the parties.  The popular explanation of Coggs v.  Bernard is, that the delivery was a consideration for a promise to carry the casks safely.  I have given what I believe to be the true explanation, and that which I think Lord Holt had in view, in the fifth Lecture. 1 But whether that which I have offered be true or not, a serious objection to the one which is commonly accepted is that the declaration does not allege that the delivery was the consideration.

The same caution should be observed in construing the terms of an agreement.  It is hard to see the propriety of erecting any detriment which an instrument may disclose or provide for, into a consideration, unless the parties have dealt with it on that footing.  In many cases a promisee may incur a detriment without thereby furnishing a consideration.  The detriment may be nothing but a condition precedent to performance of the promise, as where a man promises another to pay him five hundred dollars if he breaks his leg. 2

The courts, however, have gone far towards obliterating this distinction.  Acts which by a fair interpretation of language would seem to have been contemplated as only the compliance with a condition, have been treated as the consideration of the promise. 3 And so have counter promises in an agreement which expressly stated other matters as the consideration. 4 So it should be mentioned, subject [293] to the question whether there may not be a special explanation for the doctrine, that it is said that an assignment of a leasehold cannot be voluntary under the statute of 27 Elizabeth, c. 4, because the assignee comes into the obligations of the tenant. 1 Yet the assignee’s incurring this detriment may not be contemplated as the inducement of the assignment, and in many cases only amounts to a deduction from the benefit conferred, as a right of way would be, especially if the only obligation is to pay rent, which issues out of the land in theory of law.

But although the courts may have sometimes gone a little far in their anxiety to sustain agreements, there can be no doubt of the Principle which I have laid down, that the same thing may be a consideration or not, as it is dealt with by the parties.  This raises the question how a thing must be dealt with, in order to make it a consideration.

It is said that consideration must not be confounded with motive.  It is true that it must not be confounded with what may be the prevailing or chief motive in actual fact.  A man may promise to paint a picture for five hundred dollars, while his chief motive may be a desire for fame.  A consideration may be given and accepted, in fact, solely for the purpose of making a promise binding.  But, nevertheless, it is the essence of a consideration, that, by the terms of the agreement, it is given and accepted as the motive or inducement of the promise.  Conversely, the promise must be made and accepted as the conventional motive or inducement for furnishing the consideration.  The root of the whole matter is the relation of reciprocal [294] conventional inducement, each for the other, between consideration and promise.