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What is a bargain?

Exchange of promises and acts where each party views what they give as the price for what they get


If you promise to forbear or actually forbear from performing something you're legally entitled to perform, can that be a bargain?



What is the bargain theory of consideration?

A bargain equates to consideration


When does the consideration substitute apply?

Real consideration is not present


What is an example of a consideration substitute?

Promissory estoppel


What is promissory estoppel?

If promisee detrimentally, reasonably, and foreseeably relies on a promise, it becomes enforceable


If a law school puts up a sign on the bulletin board saying $500 to whoever wins a writing competition, and a student wins, does promissory estoppel apply here?

No, it isn't necessary, if the student didn't rely, then you don't need a consideration substitute, you just use normal consideration


What are UCC substitutions for consideration?

- merchant's firm offer
- modifications


If someone pays for the right to keep something open, is merchant's firm offer the answer?

No, it is just an option contract


Does a modification under the UCC require consideration?

Not if it is made in good faith


If a modification is made to a contact by changing the item and the price, do you need to use the modification substitute for consideration under the UCC?

No, because there was consideration since both parties gave something up


What are promises that raise consideration issues?

Bargain promises, those involving accord and satisfaction, promises to waive conditions, donative promises, promises based on past or moral consideration


What are some bargains that are not consideration?

Nominal consideration, illusory promises, promises to do what you're already legally obligated to do, promise to surrender/forebear when it is unreasonable


Is normal consideration good enough for a bargain?

No, it is a bargain in form but not in substance, so there's no real bargain


Does nominal consideration make a donative promise enforceable?



Does nominal consideration make an option contract binding?

Yes, if the option is in writing and proposes an exchange on fair terms


How Does written revival of a debt that is barred by a technical defense like SOL or bankruptcy work?

Enforceable because the government wants people to pay their debts, but it must be in writing and is only enforceable for the amount written even if that is less than what is owed or if written amount is more than the debt


How do promises that are based on moral obligations work?

If promise was to pay something in exchange for something, then it is enforceable, but if it was just as a moral obligation, then it isn't


If you injure someone and you say you will pay for all the damages because you feel guilty, is that enforceable?

No, no consideration


If You promise to surrender or forbear from asserting a legal claim, is that enforceable?

Yes, if it was bargained for, reasonable, and in good faith
- traditional rule: had to be honest and reasonable
- modern rule: had to be honest or reasonable


Can a written release be consideration?



If you make an agreement that calls for forbearance, but no time period wAs stated, what is meant?

Reasonable time


If you ask someone to for forbear from bringing a claim against you and promise to pay them, and they agree and forbear for 11 months, then Sue, did they break the deal?

No, because the promise was for a reasonable time, and 11 months was reasonable


Is it essential for there to be equal value in order to be consideration?

No, as long as the contract is not unconscionable


What is unconscionable?

Something so unfair that it shocks the conscience


What is a good test to see if there is good consideration?

Ask if the promise is causing a legal detriment or forbearance


What is the significant minority rule when it comes to consideration?

If a promisor is not giving up legal detriment, it is still good consideration if the promisee receives a benefit


If you are a horse jockey and obligated to horse's owner to win, and the stable owner comes to you before the race and offers you more money to win, is that enforceable under the two different views?

- majority rule: not enforceable because already had a duty to him to try to win
- Minority rule: enforceable because promise was to a diff party