hen one adds
enforcement of promises at suit of third-party beneficiaries, which is
making headway the world over, and enforcement of promises where the
consideration moves from a third person, which has strong advocates in
America and is likely to be used to meet the exigencies of doing
business through letters of credit, one can but see that Lord
Mansfield's proposition that no promise made as a business transaction
can be _nudum pactum_ is nearer realization than we had supposed.

Yet the equivalent theory and the injurious-reliance theory are even
less adequate to explain the actual law. The equivalent theory must
wrestle at the outset with the doctrine that inadequacy of
consideration is immaterial so that the equivalency is often
Pickwickian. Hegel could argue for it on the basis of the Roman
_laesio enormis_. But when a court of equity is willing to uphold a
sale of property worth $20,000 for $200, even a dogmatic fiction is
strained. Moreover the catalogue of anomalies with which the bargain
theory must wrestle contains more than one difficulty for the adherent
of either theory. Stipulations in the course of litigation do not need
equivalents nor do they need to be acted on in order to be
enforceable. A release by mere acknowledgment, when good at all, needs
no equivalent and need not be acted on. Waiver by a surety of the
defense of release by giving time to the principal needs no element of
consideration nor of estoppel. Defectively executed securities,
settlements and advancements need no equivalent and need not be acted
on in order to be reformed. Options under seal are held open in equity
on the basis of the seal alone. A gratuitously declared trust creates
an obligation cognizable in equity without more. In truth the
situation in our law is becoming much the same as that in the
maturity of Roman law and for the same reason. We have three main
categories. First, there are formal contracts, including sealed
instruments, recognizances, and the formal contracts of the law
merchant, in which latter the form consists in the use of certain
words, requirements as to sum certain, payment at all events, and
certainty as to time. Second, there are the real contracts of debt and
bailment. Third, there are simple contracts, without form and upon
consideration. The latter is the growing category although the formal
contracts of the law merchant have shown some power of growth and the
business world has been trying to a