BASES FOR ENFORCING PROMISES (I)
I)Expectation – Goal is to put the non-breaching party in the position he would have been in had the contract been performed. Protects the expectation interest.
II) Reliance – Goal is to put the plaintiff in as good a position as he was in before the contract was made.
Usually used when
a) Impossible to measure expectation interest
b) Recovery is based on promissory estopple theory.
III) Restitution – Court forces the defendant to pay the plaintiff an equal amount to the benefit that was received.
1) Fundamentals of Consideration
RESTATMENT (SECOND) § 71
(1) To constitute consideration, a performance or a return promise must be bargained for.
(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and given by the promise in exchange for that promise.
(3) CONSIDERATION IS A BARGAINED FOR EXCHANGE.
HAMMER v. SIDWAY
*Uncle promised to pay Nephew 5k if he didn’t drink or gamble until he was 21.
**There was consideration because the Nephew suffered a detriment by forgoing he option to drink, smoke & gamble. Detriment to promisee or benefit to the promisor can be consideration.
FIEGE v. BOEHM
· Woman was pregnant and thought Man was the father. He did not want it to go public so she forbore her right to take him to paternity court. Is this consideration?
** The surrender of, or forbearance to assert, a valid claim by a person with an honest and reasonable belief in its possible validity can be consideration.
PEPPERCORNS: Shams where parties make it look like consideration.
1st Restatement recognizes it as OK but 2nd Rstment takes opposite view.
GRATUITOUS PROMISES: figure it out HUGE TO UNDERSTANDING
2) The Requirement of Exchange: Actions in the Past
ed man promises to pay injured man for saving his life. PAST ACTIONS.
** Benefit to the promisor or injury to the promisee is a sufficient legal consideration for the promisor’s agreement to pay. MORAL OBLIGATION
*** Where the promisee cares for, improves, and preserves the property of the promisor, though done without request, is sufficient consideration for promisor’s subsequent promisee to pay for the service, because of the material benefit received.
3) The Requirement of Bargain
BARGAINED FOR EXCHANGE
KIRKSEY v. KIRKSEY
Brother hears of his brother’s death and offers his wife land to live on but the land is in the other state where the brother lives. If you come down and see me, I will let you have a place to raise your family”