first, the negative, rather
than upon the second, the affirmative, part of this twofold program.
This is true also of the historical jurists and of the positivists.
The English trader and entrepreneur was not seeking for legal
instruments. He could work passably with those which the law furnished
if the law would but let him. What he sought was to be free from legal
shackles which had come down from a society of a different nature
organized on a different basis and with other ends. Hence juristic
thought addressed itself to this for a season rather than to the
doctrine of consideration and the reason for non-enforcement of
deliberate promises where not put in the form of bargains.

No one of the four theories of enforcing promises which are current
today is adequate to cover the whole legal recognition and enforcement
of them as the law actually exists. Putting them in the order of their
currency, we may call them (1) the will theory, (2) the bargain
theory, (3) the equivalent theory, (4) the injurious-reliance theory.
That is, promises are enforced as a giving effect to the will of those
who agree, or to the extent that they are bargains or parts of
bargains, or where an equivalent for them has been rendered, or where
they have been relied on by the promisee to his injury, according to
the theory chosen. The first is the prevailing theory among
civilians. But it must give way before the onward march of the
objective theory of legal transactions and is already fighting a
rear-guard action. In our law it is impossible. We do not give effect
to promises on the basis of the will of the promisor, although our
courts of equity have shown some tendency to move in that direction.
The attempt in the nineteenth century to Romanize our theories of
liability involved a Romanized will-theory of contract. But no one who
looks beneath the surface of our law reports can doubt that the
attempt has failed wholly. We no longer seek solutions on every side
through a pedantic Romanized law of bailments and in the law of
bailments itself we are coming to talk in common-law terms of
negligence in view of the circumstances and not in Romanist terms of
the willed standard of diligence and corresponding degrees of
negligence. In America, at least, the objective theory of contract is
orthodox and the leader of English analytical jurists of the present
generation has expounded it zealously. Courts of equity, which
inherit modes of thought from