71 - 81 Chapter 4 TOPIC 1: THE REQUIREMENT OF CONSIDERATION
71 Requirement of Exchange; Types of Exchange
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 is given by the promisee in exchange for that promise.
3. The performance may consist of
- an act other than a promise, or
- a forbearance, or
- the creation, modification, or destruction of a legal relation.
4. The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person.
72 Exchange of Promise for Performance
Except as stated in §§ 73 and 74, any performance which is bargained for is consideration.
73 Performance of Legal Duty see also Validity
Performance of a legal duty owed to a promisor which is neither doubtful nor the subject of honest dispute is not consideration; but a similar performance is consideration if it differs from what was required by the duty in a way which reflects more than a pretense of bargain.
74 Settlement of Claims see also Validity
1. Forbearance to assert or the surrender of a claim or defense which proves to be invalid is not consideration unless
- the claim or defense is in fact doubtful because of uncertainty as to the facts or the law, or
- the forbearing or surrendering party believes that the claim or defense may be fairly determined to be valid.
2. The execution of a written instrument surrendering a claim or defense by one who is under no duty to execute it is consideration if the execution of the written instrument is bargained for even though he is not asserting the claim or defense and believes that no valid claim or defense exists.
75 Exchange of Promise for Promise see also Validity
Except as stated in §§ 76 and 77, a promise which is bargained for is consideration if, but only if, the promised performance would be consideration.
76 Conditional Promise see also Validity
1. A conditional promise is not consideration if the promisor knows at the time of making the promise that the condition cannot occur.
2. A promise conditional on a performance by the promisor is a promise of alternative performances within § 77 unless occurrence of the condition is also promised.
77 Illusory and Alternative Promises see also Validity
A promise or apparent promise is not consideration if by its terms the promisor or purported promisor reserves a choice of alternative performances unless
- each of the alternative performances would have been consideration if it alone had been bargained for; or
- one of the alternative performances would have been consideration and there is or appears to the parties to be a substantial possibility that before the promisor exercises his choice events may eliminate the alternatives which would not have been consideration.
78 Voidable and Unenforceable Promises see also Validity
The fact that a rule of law renders a promise voidable or unenforceable does not prevent it from being consideration.
79 Adequacy of Consideration; Mutuality of Obligation see also Validity
If the requirement of consideration is met, there is no additional requirement of
- 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."
80 Multiple Exchanges see also Validity
1. There is consideration for a set of promises if what is bargained for and given in exchange would have been consideration for each promise in the set if exchanged for that promise alone.
2. The fact that part of what is bargained for would not have been consideration if that part alone had been bargained for does not prevent the whole from being consideration.
81 Consideration as Motive or Inducing Cause see also Validity
1. 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.
2. 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.
82 Promise to Pay Indebtedness; Effect of the Statute of Limitations
1. A promise to pay all or part of an antecedent contractual or quasi-contractual indebtedness owed by the promisor is binding if the indebtedness is still enforceable or would be except for the effect of a statute of limitations.
2. The following facts operate as such a promise unless other facts indicate a different intention:
- A voluntary acknowledgment to the obligee, admitting the present existence of the antecedent indebtedness; or
- A voluntary transfer of money, a negotiable instrument, or other thing by the obligor to the obligee, made as interest on or part payment of or collateral security for the antecedent indebtedness; or
- A statement to the obligee that the statute of limitations will not be pleaded as a defense.
83 Promise to Pay Indebtedness Discharged in Bankruptcy
An express promise to pay all or part of an indebtedness of the promisor, discharged or dischargeable in bankruptcy proceedings begun before the promise is made, is binding.
84 Promise to Perform a Duty in Spite of Non-occurrence of a Condition
1. Except as stated in Subsection (2), a promise to perform all or part of a conditional duty under an antecedent contract in spite of the non-occurrence of the condition is binding, whether the promise is made before or after the time for the condition to occur, unless
- occurrence of the condition was a material part of the agreed exchange for the performance of the duty and the promisee was under no duty that it occur; or
- uncertainty of the occurrence of the condition was an element of the risk assumed by the promisor.
If such a promise is made before the time for the occurrence of the condition has expired and the condition is within the control of the promisee or a beneficiary, the promisor can make his duty again subject to the condition by notifying the promisee or beneficiary of his intention to do so if
- the notification is received while there is still a reasonable time to cause the condition to occur under the antecedent terms or an extension given by the promisor; and
- reinstatement of the requirement of the condition is not unjust because of a material change of position by the promisee or beneficiary; and
- the promise is not binding apart from the rule stated in Subsection (1).
85 Promise to Perform a Voidable Duty see also Validity
Except as stated in § 93, a promise to perform all or part of an antecedent contract of the promisor, previously voidable by him, but not avoided prior to the making of the promise, is binding.
86 Promise for Benefit Received
1. A promise made in recognition of a benefit previously received by the promisor from the promisee is binding to the extent necessary to prevent injustice.
2. A promise is not binding under Subsection (1)
- if the promisee conferred the benefit as a gift or for other reasons the promisor has not been unjustly enriched; or
- to the extent that its value is disproportionate to the benefit.
87 Option Contract see also Validity
An offer is binding as an option contract if it
- is in writing and signed by the offeror, recites a purported consideration for the making of the offer, and proposes an exchange on fair terms within a reasonable time; or
- is made irrevocable by statute.
An offer which the offeror should reasonably expect to induce action or forbearance of a substantial character on the part of the offeree before acceptance and which does induce such action or forbearance is binding as an option contract to the extent necessary to avoid injustice.
A promise to be surety for the performance of a contractual obligation, made to the obligee, is binding if
- the promise is in writing and signed by the promisor and recites a purported consideration; or
- the promise is made binding by statute; or
- the promisor should reasonably expect the promise to induce action or forbearance of a substantial character on the part of the promisee or a third person, and the promise does induce such action or forbearance.
89 Modification of Executory Contract
A promise modifying a duty under a contract not fully performed on either side is binding
- if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made; or
- to the extent provided by statute; or
- to the extent that justice requires enforcement in view of material change of position in reliance on the promise.
91 Effect of Promises Enumerated in §§ 82 - 90 When Conditional
If a promise within the terms of §§ 82-90 is in terms conditional or performable at a future time the promisor is bound thereby, but performance becomes due only upon the occurrence of the condition or upon the arrival of the specified time.
92 To Whom Promises Enumerated in §§ 82 - 90 Must Be Made
The new promise referred to in §§ 82-85 is not binding unless it is made to a person who is then an obligee of the antecedent duty.
93 Promises Enumerated in §§ Made in Ignorance of Facts
A promise within the terms of §§ 82-85 is not binding unless the promisor knew or had reason to know the essential facts of the previous transaction to which the promise relates, but his knowledge of the legal effect of the facts is immaterial.
A promise or agreement with reference to a pending judicial proceeding, made by a party to the proceeding or his attorney, is binding without consideration. By statute or rule of court such an agreement is generally binding only
- if it is in writing and signed by the party or attorney, or
- if it is made or admitted in the presence of the court, or
- to the extent that justice requires enforcement in view of material change of position in reliance on the promise or agreement.
214 Evidence of Prior or Contemporaneous Agreements and Negotiations see also (Agreed Obligations)
Agreements and negotiations prior to or contemporaneous with the adoption of a writing are admissible in evidence to establish
- that the writing is or is not an integrated agreement;
- that the integrated agreement, if any, is completely or partially integrated;
- the meaning of the writing, whether or not integrated;
- illegality, fraud, duress, mistake, lack of consideration, or other invalidating cause;
- ground for granting or denying rescission, reformation, specific performance, or other remedy.
218 Untrue Recitals; Evidence of Consideration see also Agreed Obligations
1. A recital of a fact in an integrated agreement may be shown to be untrue.
2. Evidence is admissible to prove whether or not there is consideration for a promise, even though the parties have reduced their agreement to a writing which appears to be a completely integrated agreement.