hrase with the
hallmark of Roman legal science behind our reluctance to enforce all
deliberate promises simply as such. It should be compared with the
reluctance of courts to apply the ordinary principle of negligence to
negligent speech, with the doctrine as to seller's talk, with the
limitations upon liability for oral defamation and with many things of
the sort throughout our law. All of these proceed partly from the
attitude of the strict law in which our legal institutions first took
shape. But they have persisted because of a feeling that "talk is
cheap," that much of what men say is not to be taken at face value and
that more will be sacrificed than gained if all oral speech is taken
seriously and the principles applied by the law to other forms of
conduct are applied rigorously thereto. This is what was meant when
the writers on natural law said that promises often proceeded more
from "ostentation" than from a real intention to assume a binding
relation. But this feeling may be carried too far. Undoubtedly it has
been carried too far in the analogous cases above mentioned. The rule
of _Derry_ v. _Peek_ goes much beyond what is needed to secure
reasonable limits for human garrulousness. The standard of negligence,
taking into account the fact of oral speech and the character and
circumstances of the speech in the particular case, would amply secure
individual free utterance. So also the doctrine that one might not
rely on another's oral representation in the course of a business
transaction if he could ascertain the facts by diligence went much too
far and has had to be restricted. Likewise we have had to extend
liability for oral defamation. Accordingly because men are prone to
overmuch talk it does not follow that promises made by business men in
business dealings or by others as business transactions are in any
wise likely to proceed from "ostentation" or that we should hesitate
to make them as binding in law as they are in business morals. Without
accepting the will theory, may we not take a suggestion from it and
enforce those promises which a reasonable man in the position of the
promisee would believe to have been made deliberately with intent to
assume a binding relation? The general security is more easily and
effectively guarded against fraud by requirements of proof after the
manner of the Statute of Frauds than by requirements of consideration
which is as easy to establish by doubtful evidence as the p