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University of Kansas School of Law
Drahozal, Christopher R.

Basis for Enforcing Promises
2. Three Interests:
a. Expectation (should be more or less the same as reliance)
i. Promisee’s injury consists in being worse off than it the promise has been performed
ii. Promise gets the benefit of the bargain
iii. Remedy: Puts the promisee in the same place as if the promise had been performed
b. Reliance (same or less than expectation interest)
i. Promise has changed its position to its detriment in reliance on the promise
ii. Remedy: puts the promise in the position he would have been if he had never entered the contract
c. Restitution (usually the least)
i. Promise not only relied on the promise, but has conferred a benefit on the promisor
ii. ex.- promisee has performed some task for the promisor
3. Consideration:
a. Restatement 71
i. Consideration is a bargain for exchange
ii. A performance or return promise is bargained for if it is sought by the promisor in exchange for that promise and given by the promisee in exchange for that promise
b. Consideration may consist either in:
i. Some benefit to the one party
ii. Some detriment by the other
c. May seek performance or return promise
d. Must be lawful right to act? (Hammer) under bargain theory you may have an argument that it does not matter whether or not forbearance was from a lawful act or not.
i. Compare benefit/detriment approach
4. Fundamentals of Consideration:
a. Consideration for a promise is
i. (a) an act other than a promise, or
ii. (b) a forbearance, or
iii. (c) The creation, modification, or destruction of a legal relation, or
iv. (d) A return promise bargained for and given in exchange of the promise (p.43).
b. Important to look at inducement!!!
5. Implications of bargain theory:
a. Gratuitous Promises (Gifts) are not legally enforceable, there is no consideration
b. Peppercorns- If the bargain is a mere pretense there is no consideration (Fiege v. Bohem)

6. Forbearance
a. Hamer v. Sidway: (forbearance)
i. “If you refrain from drinking, using tobacco, swearing, and playing c

bastard claim.
2. If she honestly believed that he could have been the father (done in good faith) than the forbearance did equal consideration.
3. Court held that there was consideration because they believe there was good faith
7. Actions in the Past:
a. Rule:
i. Past action is not consideration
b. Feinberg v. Pfeiffer Co.: (past action)
i. Π worked for Defendant for 37 yrs and board of directors promised to pay her $200/month retirement benefits when she quit her job. Feinberg quits soon after. Co. decides to stop paying the retirement payments b/c there was no contract, only a gratuitous promise
1. Court held no consideration
Past employment with company could not equal consideration (action in the past), her retiring also did not equal consideration because it was not sought by company, her continued