Comprehensive Volume, 18 th Edition Chapter 15: Consideration

What is Consideration? Consideration is what each party gives up to the other in the making of the agreement; it is the “price” of the contract for each side. That price may be doing an act, refraining from an act, or merely promising to do or to refrain. A promise to do what one is already obligated to do is usually not valid consideration. Because consideration is the price given to obtain the promise, past benefits already conferred on the promisor usually cannot be consideration. Consideration is defined as a detriment to one party while also being a benefit to the other.

Consideration is Required A promise is not binding if there is no consideration for the promise. In a bilateral contract, the promise of each party must be supported by consideration. If either promise is not supported, it is not a contract. Although consideration is required to make a promise binding, the unsupported promise is not illegal. The parties are free to perform their agreement, but the courts will not help either of them because there is no contract.

Loan by Bank to Tom Irvin for purchase of Ford Torino BankTom Irvin Examples of Consideration Jake Plumber Tom Irvin Sale of a Ford Torino by Jake Plumber to Tom Irvin for $1272 benefitdetriment $1272 detrimentbenefit Ford Torino benefit detriment Repayment of $1272 plus 8% interest benefit $1272 detriment

Gifts and Consideration A gift does not have consideration, so a promise to make a gift is not enforceable. A completed gift, however, cannot be rescinded for lack of consideration. Promise of a gift of Ford Torino by Tom Irvin to his sister Becky. Tom IrvinBecky Irvin benefitdetriment No consideration Promise of Ford Torino benefit detriment

Consideration and Promises Exceptions to Consideration Charitable Subscription Uniform Commercial Code Sealed and Written Instruments Promissory Estoppel What is Not Consideration Unrequested Benefit Promise to Perform Existing Obligation Moral Obligation Illegal Consideration Not Binding Consideration The Agreement Binding + Action To Act or To Forbear OR Promise

Adequacy of Consideration When the promisor obtains the consideration specified for the promise, the law is not ordinarily concerned with the value or adequacy of that consideration. Exceptions are sometimes made in the case of fraud or unconscionability and under consumer protection statutes.

Problems in Consideration If the consideration is illegal, there is no consideration, and the promise is not binding. When the promisor does not receive the price promised for the promise, there is a failure of consideration, which constitutes a breach of the contract.