Flashcards in Ch 12: Consideration Deck (26)
The value given in return for a promise (bilateral) or in return for a performance (unilateral).
What are the two parts of consideration?
1. Something of legally sufficient value must be given in exchange for the promise.
2. Must be a bargained for exchange.
The something of legally sufficient value may consist of what?
1. A promise to do something that one has no prior legal duty to do.
2. The performance of an action that one is otherwise not obligated to undertake.
3. Refraining from an action that one has a legal right to undertake (called forbearance).
Second element of consideration. It must provide the basis for the bargain struck between the contraction parties. The item of value must be given or promised by the promisor (offeror) in return for the promisee's promise, performance, or promise of performance.
(This element of bargained- for exchange distinguishes the difference between contracts from gifts)
Court will not question Adequacy of consideration based solely on the comparative value of the things exchanged, true or false?
True, determination of whether consideration exists does not depend on comparison of the values of the things exchanged.
Under most circumstances, a promise to do what one already has a legal duty to do does not constitute legally sufficient consideration, True or False?
The rule regarding pre-existing duty is meant to what?
Prevent extortion and the so-called hold up game.
Unmaking of a contract so as to return the parties to the positions they occupied before the contract was made.
Promises made in return for actions or events that have already taken place are unenforceable. Therefore, past consideration is NO consideration.
Employee agrees not to work for competitors of the employer for a certain period of time after the employment relationship ends.
AKA: covenant not to compete
If the term of the contract express such uncertainty of performance that that the promisor has not definitely promised to do anything. A promise is illusory when it fails to bind the promisor. Promisor has option to cancel contract before performance has begun
(When the nature or extent of performance is too uncertain, the promise is rendered illusory and unenforceable)
Buyer and seller agree that the buyer will purchase from the seller all of the goods of a designated type that the buyer needs, or requires.
Buyer and seller agree that the buyer will purchase from the seller all of what the seller produces, or the seller's output.
Accord and satisfaction
Claims are commonly settled this way. A debtor offers to pay a lessor amount than the creditor originally claimed to be owed.
Accord- Agreement under which one of the parties undertakes to give or perform, and the other to accept, in satisfaction of a claim something other than that on which the parties originally agreed.
Satisfaction- Performance that takes place after the accord is executed.
Basic rule: can be no satisfaction unless there is first and accord-Amount of debt must be in dispute
Claims are settle in two ways?
1. Accord and satisfaction
2. Signing of a release or covenant not to sue.
One whose amount has been ascertained, fixed, agreed on, settled, or exactly determined.
Accord and satisfaction cannot take place if debt is liquidated.
The amount of debt has not been ascertained, fixed, agreed on, settled, or exactly determined.
Contract in which one party forfeits the right to pursue a legal claim against the other party.
Releases will generally be binding if?
1. Given in good faith.
2. Stated in a signed writing (which is required in many states)
3.Accompanied by consideration.
Covenant to sue always bar further recovery, true or false?
False; Covenant to sue does not always bar further recovery
What types of of promises may be enforced despite the lack of consideration?
1. Promises that induce detrimental reliance, under the doctrine of promissory estoppel.
2. Promises to pay debts that are barred by a statute of limitations.
3. Promises to make charitable contributions.
(Detrimental reliance) A person who has reasonably and substantially relied on the promise of another may be able to obtain some measure of recovery.
Requirements to state a claim of promissory Estoppel
1. Must be a clear and definite promise.
2. The promisor should have expected that the promisee would rely on the promise.
3. The promisee reasonably relied on the promise by acting or refraining from some act.
4. The promisee's reliance was definite and resulted in substantial detriment.
5. Enforcement of the promise is necessary to avoid injustice.
What is the difference between quasi contracts and promissory estoppel?
With quasi contracts no promise was made at all, whereas promissory estoppel, a promise was made and relied on, but it was unenforceable.