1. Ways to Enforce a Promise
a. Traditional Contract Theory (TKT)
i. Types of contracts
1. Unilateral- unilateral is a promise for action or forbearance (i.e. reward/lost dog)
a. These are enforceable when:
i. The action actually occurs
1. What happens if the action is on going, or if promisor changes their mind
a. If action has been started, then promise is enforceable
b. If action has not been started, and promisor withdraws promise, then the promise is unenforceable–> this gives the promisor the ability to withdraw their promise
b. The greater the chance of failure, the more likely it is likely that the offeror is looking for performance
2. Bilateral
a. A promise for a promise
b. This obligates both parties–> they both have rights and responsibilities
c. You get the promise of something in the future, as well as the action–> you get both
i. These are always enforceable
1. But at what point is this promise enforceable?
a. At the point that the promises are made
d. Whether a person looking for a promise is looking for a return promise–> if they are only looking for the action, not the PROMISE of action
e. Person must also actually get what they are seeking–> if you get a return promise, and you want action, then it is a unilateral contract
ii. Consideration
1. Bargain For Theory
a. Definition: a promise given for another promise, action, or forbearance
b. Has there been an exchange?
i. What was the promisor seeking?
ii. What did the promisor receive?
iii. Was what the promisor received motivated by what they were seeking?
c. Promises that are not enforceable under
ks like both parties intended to contract, then the court will imply a promise
2. Good faith can be enforced by subjective (honesty standard) or objective (reasonable person standard/ this is used in commercial dealings)
3. Example: Eastern Airlines– the parties had entered into this agreement, and both put in a good faith effort to contract
· The court found that there was an implied promise (quasi contract)
4. Mattei v. Hopper– the court found that there was a lacking of mutuality of obligation
1. Implied Promise (Implied Promise in fact)
1. The court finds a promise where there was none, but it looks like the parties wanted to contract
1. The court makes consideration where there was none
2. Wood v. Lucy, Lady Duff Gordon
Cardozo looked at the parties intent, and found that because of their intent (Wood’s agreement to market her name, and in return, she gives him the sole benefit of marketing her name)
There was no consideration, so the court implies the promise
b. Substantial performance of the contract (quantity and quality of work)
i. This is another way that the court can imply a promise
ii. Example: CAB
c. Examples: Strong v. Sheffield– Also, Sheffield could collect the money he was owed at any time (at will)
i. If Strong had placed a time limit on when he had to forbear till, then this might have been an enforceable promise
ii. Illusory promise, that is enforceable because there is no mutuality of obligation
