I. The Bargain Theory of Contract
A. Consideration
1. Definitions
a) A Contract is “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” Restatement 2d §1.
b) Consideration is the inducement of a contract, something of value given in return for a performance or a promise of performance by another, for the purpose of forming a contract. This is a required element in the formation of a contract.
c) Illusory Promise is a promise so indefinite that it cannot be enforced or which, by virtue of provisions or conditions contained in the promise itself, is one whose fulfillment is optional on the part of the promisor. Not adequate for consideration.
2. Restatement
a) Restatement 2d §71(1) – to find consideration there must be a performance or return promise which has been bargained for by the parties.
b) Restatement §76 – Any consideration that is not a promise is sufficient to satisfy the requirement of §19 (c), except the following:
(1) (a) An act or forbearance required by a legal duty that is neither doubtful nor the subject of honest and reasonable dispute if the duty is owed either to the promisor or to the public, or, if imposed by the law of torts or crimes, is owed to any person;
(2) (b) The surrender of, or forbearance to assert an invalid claim or defense by one who has not an honest and reasonable belief in its possible validity;
(3) (c) The transfer of money or fungible goods as consideration for a promise to transfer at the same time and place a larger amount of money or goods of the same kind and quality.
c) Restatement §79 – A promise or apparent promise which reserves by its terms to the promisor the privilege of alternative courses of conduct is insufficient consideration if any of these courses of conduct would be insufficient consideration if it alone were bargained for.
(1) See Petroleum Refractionating Corp. v. Kendrick Oil Co., infra.
d) Restatement 2d §77 Comment (a) – Words of promise which by their terms make performance entirely optional with the promisor do not constitute a promise.
e) Restatement 2d §79 – If the requirement of consideration is met, there is no additional requirement of
(1) (a) a gain, advantage, or benefit to the promisor or a loss, disadvantage, or detriment to the promisee; or
(2) (b) equivalence in the values exchanged; or
(3) (c) “mutuality of obligation.”
f) Restatement 2d §175 – a contract is voidable by the victim if that party’s “manifestation of assent is induced by improper threat by the other party that leaves the victim no reasonable alternative.”
g) UCC §2-306 – Output, Requirements, and Exclusive Dealings
(1) A term that measures the quantity by output or requirements means actual output or requirements as may occur in good faith, cannot be disproportionate to a stated or implied estimate.
3. Refraining from a right is adequate consideration.
a) Hamer v. Sidway, 124 N.Y. 538 (1891)
(1) Facts: Uncle tells Nephew that if he refrains from certain vices until he is 21, he will give him $5000. Π is the executor of Uncle’s estate; Δ is the assignee of Nephew.
(2) Held: Nephew’s refraining from certain vices is a forbearance that amounts to consideration necessary for contract enforceability. The court “will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party.”
b) Fiege v. Boehm, 210 Md. 352 (1956)
(1) Facts: Π and Δ entered an agreement for which Δ will pay support for her illegitimate child in return for Π not trying him for bastardy. Δ later proves the child is not his and stops paying.
(2) Held: Π’s promise not to sue for bastardy even though impossible was adequate consideration for his promise to pay support. There was no evidence of fraud. Giving up the right to take legal action is adequate consideration.
(3) Uses Restatement §76(b). A current defense could have used Restatement 2d 175.
c) Petroleum Refractionating Corp. v. Kendrick Oil Co., 65 F.2d 997 (1933)
(1) Facts: Δ contracted to buy 1.5M G of oil from Π unless Π should stop making that grade of oil. Δ states that the grade of oil is not correct and will not accept further deliveries. (This is during the depression when the price of oil is falling fast.) Π then sells the remaining contract for much less than originally contracted and is suing for the difference.
(2) Issue: Δ argues there was no consideration.
(3) Held: A benefit to the promisor (Δ) or a detriment to the promisee (Π) is a sufficient consideration for a contract. Under Restatement 79, both need to be sufficient when promisor has alternative courses of conduct. Δ got oil, and Π gave up the right to discontinue producing that grade of oil. Giving up a right is adequate consideration.
4. Options Contracts
a) Firm Offers under UCC §2-205
(1) An offer by a merchant which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the stated time (or reasonable time if not stated, no more than 3 months). Must be signed.
b) Restatement 2d §87(a)
(1) An offer is binding as an option contract if it
(a) is in writing and signed by the o
ement 2d §90.
2. Holmes on Reliance
a) “It would cut up the doctrine of consideration by the roots, if a promisee could make a gratuitous promise binding by subsequently acting in reliance on it.”
b) Some have argued that this prophecy has come true.
3. Equitable Estoppel and the emergence of Promissory Estoppel
a) Promissory Estoppel requires all of:
(1) A Promise
(2) Foreseeable reliance
(3) Actual reliance
(4) Injustice absent enforcement
b) Possible Applications
(1) Promise to make a gift: The P.E. doctrine is most often applied to enforce promises to make gifts, where the promisee relies on the gift to his detriment.
(a) Intra-family promises: The doctrine may be applied where the promise is made by one member of a family to another. (Example: Mother promises to pay for Son’s college education, and Son quits his job. Probably the court will award just the damages Son suffers from losing the job, not the full cost of a college education.)
(2) Charitable subscriptions: A written promise to make a charitable contribution will generally be binding without consideration, under the P.E. doctrine. Here, the doctrine is watered down: usually the charity does not need to show detrimental reliance. (But oral promises to make charitable contributions usually will not be enforceable unless the charity relies on the promise to its detriment.)
(3) Gratuitous bailments and agencies: If a person promises to take care of another’s property (a “gratuitous bailment”) or promises to carry out an act as another person’s agent (gratuitous agency), the promisor may be held liable under P.E. if he does not perform at all. (However, courts are hesitant to apply P.E. to promises to procure insurance for another.)
Quasi-contract – One party has something they were not entitled to in the first place, and in good conscience he should either return it or pay its value (doctor charging for reviving a person who passes out on the floor). The law implies a contract where no contract existed previously and dispenses relief according to that implied contract. The contract implied
