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University of Mississippi School of Law
Barnes, Richard L.

Basis for Enforcing Promises

Meaning of Enforce

Restatement §1 – a K 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 is some way recognizes a duty.

Not all are enforceable b/c it would be overly burdensome.


Specific performance §359(1)- rare. Force execution of a K only if it is a unique subject matter where damages would be inadequate, ex: land transactions.

Expectation Interest – put promisee in the position would have been in had the promise been performed. Receives the “benefit of the bargain.” Promisee’s injury consists of being worse off than if the promise had been performed.

Reliance Interest – has changed position to detriment in reliance on the promise. The injury consists of being worse off than if the promise had not been made. Put promisee back in the same place occupied w/ regard to the world before the K was made.

Restitution Interest – promisee has not only relied on the promise but has conferred a benefit on the promisor. Disgorgement.

Punitive Damages – only if the conduct constituting the breach is also a tort.

Actual Damages – damages directly resulting from the breach.

Arbitration – typically have 1 or 3 arbitrators, are temp established for each specific case. Procedure is more flexible and informal and arbitrators may give no reason for their decisions. Can only take place if parties have agreed in the K. Subject to only a very limited review “manifest disregard of the law” they can sometimes reach decisions and give relief that a trial court can’t.

Consideration as a Basis for Enforcement

Fundamentals of Consideration

Bargained for Exchange §71 – Requirement of Exchange; Types of Exchange

To constitute consideration, a performance or a return promise must be bargained for.

A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.

The performance may consist of

An act other than a promise, or

A forbearance, or (Hamer v. Sidway)

Even if an invalid claim, there is still consideration if claim is reasonable and in good faith (Fiege v. Boehm bastard child case)

A gain, advantage, or benefit to the promisor or a loss, disadvantage, or detriment to the promisee, or

Equivalence in the values exchanged; or

Mutuality of obligation.

Something of value must be given, the actual value does not matter so long as it is genuinely bargained for.

§81 – Consideration as Motive

The fact that what is bargained for does not of itself induce the making of a promise does not prevent it from being consideration for the promise.

The fact that a promise does not of itself induce a performance or return promise does not prevent the performance or return promise from being consideration for the promise.