MEE Rule Statement

Question 1

Common law (Modification)

Answer 1

A contract for services is governed by the common law of contracts. Under the common law, every contract requires consideration to be enforceable, and only modification to a contract requires consideration. Consideration is a bargained-for exchange of something of legal value. under the pre-existing duty rule, the promise to perform a legal duty already owed is not considered.

Question 2

Possible counterargument (common law modification)

Answer 2

X might argue that a modification should be permitted because of equitable reasons. It is true that some courts will allow a contract to be modified without additional consideration if the modification is “fair and equitable” in light of the circumstances not anticipated when the contract was formed. This means that a party encountered difficulties on the edge of impracticability (i.e., unexpectedly hitting bedrock). Since such an unanticipated event would significantly increase the cost of performance, a court might allow additional modification without consideration if fair and equitable.