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South Texas College of Law Houston
Ricks, Val D.


A.Consideration- “bargain for an exchange”
(a) The promisee must incur legal detriment-benefit to the promisor & detriment to the promisee.
(b) Detriment must induce the promise
(c) Promise must induce the detriment
Note: detriment -In general, term means loss or harm; in contracts it is that which a person gives up in exchange for a promise by the other party.
3. Types of consideration
3.Promise for a promise
1. Consideration stoppers
i. Prior duty- mom promises son $ for his cooperation. NO consideration because this is a prior duty.
ii. Past consideration- I am going to give you $ for naming your child after me. This is unenforceable because of past consideration.
iii. No gift- A gift to another is not consideration because the gift giver does not benefit. No bargaining.

Promissory Estoppel- Non-bargained for detriment.

(a) Promise must be clear.
(b) Promisor must have intended to induce reliance on the part of the promisee and such reliance must have occurred to the promisee’s detriment. For example, by taking part in the promise and the fact that it was broken I sufferd a loss.
(c) The promise must be enforced to avoid injustice to the promisee.

C.Unjust Enrichments-

Is an equitable doctrine that a person shall not be allowed to profit or enrich himself inequitably at another’s expense.

Moral Obligation- some states do not accept moral obligation.

Three-prong test. For action which are arising from moral obligation. No consideration was established.
1.material benefit
2.detriment to the pltff
3.not doing would cause injustice.

i. Repromise- I make a deal with X and I promise to pay him for his detriment but fail to do so. He then comes back to me and askes for his payment and I repromise. This is actionable past consideration.
ii. Bankruptcy-I declair bank and get the debt removed. But I promise to eventually pay it back. If I don’t this may be actionable past consideration.
iii. statutes of limitation

Assent alone in modification cases.

1.Modifications of judgments.
Foakes v. Beer
This case shows that a modification on judgment may not be altered. But, in Sugarhouse v. Anderson, we see that a modification was possible because the D had shown reliance on the new agreement.

2.Modifications of Contracts.

Courts should enforce agreements modifying contracts when unexpected or unan

n in reliance on the promice.

I. Merchants and modification of contracts.
-Must be made in good faith.
“Good faith” standard.
i. Good faith means honesty in fact in the conduct of transaction concerned.
ii. “’Good faith’ in the case of merchants means honesty in the fact and the observation of reasonable commercial standards of fair dealing in trade.
NOTE: Merchants cannot modify to meet bottom line they may only modify if taking a loss.

“Predominant factor test”


A voluntary abandonment or relinquishment by a party of some right or advantage. It maybe expressed or implied. Rights are not waivable, conditions are.

A wavier of a material part of the agreement exchange is ineffective (i.e. unenforceable) a modification without consideration, without mutual assent.

Executory Waiver, being in the nature of a promise or contract, must be supported by consideration in order to be enforceable. But a waiver, partaking of the principle of an election, like an election needs no