1. CHAPTER 12 Consideration
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2. “Promises are the uniquely human way of ordering the future.”
Quote of the Day
“Promises are the uniquely human way of ordering the future.”
Hannah Arendt,
German-American Political Scientist

3. A Bargain and an Exchange
Consideration means that there must be bargaining that leads to an exchange between the parties.
Consideration can be anything that someone might want to bargain for.
A promisor is the person who makes the promise, and promisee, the person to whom the promise is made.

4. A Bargain and an Exchange
“Bargaining is obligating yourself in order to induce the other side to agree.”
The thing bargained for can be:
another promise or action.
a benefit to the promisor or a detriment to the promisee.
a promise to do something or a promise to refrain from doing something.

5. A B AND AND AND AND Consideration supports a contract! Bargain OR OR
There is consideration to support a contract between A and B, when they bargain...
Which causes...
A to give B a benefit
B to give A a benefit
and their bargaining causes BOTH parties ... OR OR
AND
AND
AND
AND
A to suffer a detriment
B to suffer a detriment
…to either give a benefit to the other or to suffer a detriment themselves.
Consideration supports a contract!

6. Adequacy of Consideration
Courts seldom inquire into the adequacy of consideration.
A previously paid benefit is generally not consideration because it was not meant to induce the other side to agree.
Exception: Economic Benefit -- in some cases, courts will enforce consideration that is an economic benefit, given with the expectation of later payment.

7. Mutuality of Obligations
Illusory Promise
If one party’s promise is conditional, the other party is not bound to the agreement.
Sales Law: Requirements and Output Contracts
See Ch. 11 for definitions of these contracts.
Section of the UCC expressly allows output and requirements contracts in the sale of goods.

8. Promissory Estoppel
Under the doctrine of promissory estoppel, even if there is no contract a promise may be enforceable if:
The offeror makes a promise knowing the offeree is likely to reply,
The offeree does in fact reply; and
The only way to avoid injustice is to enforce the promise.

9. Preexisting Duty
A promise to which the promisor is already obligated is not consideration.
Exceptions:
If the scope of the promisor’s task increases, that increase is consideration.
When unforeseen circumstances cause a party to make a promise regarding an unfinished project, that promise is valid consideration.
Modification of a sale of goods is allowable without consideration, unless there is a written agreement forbidding such modifications.

10. Settlement of Debts -- Liquidated Debt
A liquidated debt is one in which there is no dispute about the amount owed.
In cases of liquidated debt, if the creditor agrees to take less than the full amount as full payment, her agreement is not binding.
If the debtor offers a different performance to settle the debt and the creditor agrees, the agreement is binding.

11. Settlement of Debts -- Unliquidated Debt A debt is unliquidated if:
(1) the parties dispute whether any money is owed, or
(2) the parties agree that some money is owed but dispute how much.
The parties may agree to settle for less than what is owed; this “accord and satisfaction” will be enforced if the debtor pays the agreed amount.

12. Payment by Check Common Law ruling: UCC §3-311
If a debtor writes “Full Settlement” on a check, and the creditor cashes it, the payment is in full whether or not it was the right amount.
UCC §3-311
Affirms the Common Law ruling, but adds two exceptions:
Organizations may notify debtors that any offers to settle debt for less than the whole amount must be directed to a certain person.
The creditor can refund the paid amount within 90 days and then demand the full amount.

13. “The law does not hold us accountable for every promise we make
“The law does not hold us accountable for every promise we make. The doctrine of consideration determines which promises a court must enforce.”

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