George Mason School of Law

George Mason School of Law Contracts I Consideration F.H. Buckley fbuckley@gmu.edu

The need for a consideration • Restatement § 17(1) • Agreement and Bargain: § 3 • Definition § 71

The need for a consideration • How is consideration defined in Hamer v. Sidway?

Hamer v. Sidway The nephew was going to the dogs…

Hamer v. Sidway • What is the benefit-detriment standard? • Do we have to ask whether it was a real detriment? • Or whether it was a benefit to the uncle?

Hamer v. Sidway • What is the benefit-detriment standard? • Can you suggest why the uncle might have intended that the promise be legally enforceable?

Hamer v. Sidway • What is the benefit-detriment standard? • Can you suggest why the uncle might have intended that the promise be legally enforceable? • Animus contrahendi: Restatement § 21

Kirksey • Why did Isaac invite Antillico to Talladega county?

Kirksey • Why did Isaac invite Antillico to Talladega county? • Was there a benefit to Isaac? • A detriment to Antillico?

Kirksey • Why did Isaac invite Antillico to Talladega county? • Was there a benefit to Isaac? • A detriment to Antillico? • Williston’s tramp?

Kirksey • Why did Isaac invite Antillico to Talladega county? • Do you think Isaac intended legal liability? • And is that determinative?

St. Peter v. Pioneer • Why didn’t the theatre restrict bank night to paying patrons?

St. Peter v. Pioneer • Why didn’t the theatre restrict bank night to paying patrons? • So was there a contract with non-paying people waiting outside?

St. Peter v. Pioneer • Why didn’t the theatre restrict bank night to paying patrons? • So was there a contract with non-paying people waiting outside? • How was the Π to accept?

St. Peter v. Pioneer • Why didn’t the theatre restrict bank night to paying patrons? • Can you articulate why the theatre might have wanted the promise to be binding? • Recall Lefkowitz

The Bargain TheoryRestatement § 72 • How would you define it? • Is it broader or narrower than the benefit/detriment theory?

The Bargain TheoryRestatement § 72 • How would you define it? • You and I want to see a date for lunch but quarrel over the date. Is this bargaining?

The Bargain TheoryRestatement § 72 • How would you define it? • You and I want to see a date for lunch but quarrel over the date. Is this bargaining? • Was Kirksey a bargain situation? What about Hamer v. Sidway?

The Bargain TheoryRestatement § 72 • How would you define it? • Spiedel at 134 on the move to a capitalist economy

The Bargain TheoryRestatement § 72 • So what’s the point of the bargain theory? • Is it ideological-a subsidy for capitalism? • Or is something else going on?

What if there’s no bargain:Gratuitous Promises • Uncle Ebenezer might want to bind himself? So how does he do so? • At common law, a gift is effective if: • Donative intent (animus donandi) • Delivery by donor • Acceptance by donee

What if there’s no bargain:Gratuitous Promises • Uncle Ebenezer might want to bind himself? So how does he do so? • What constitutes delivery by donor? • Actual delivery of gift • Constructive delivery (e.g. key to car or house) • Deed of gift

The seal

The seal • Definition: Restatement § 96 • Effect of seal: Restatement § 95(1)

What’s wrong with formalism? Spodese mihi dare? Spondeo!

Lon Fuller on Consideration • The evidentiary function • Evidence that a promise exists

Lon Fuller on Consideration • The evidentiary function • Evidence that a promise exists • The deterrent function • a check against rash promises

Lon Fuller on ConsiderationRemember the Statute of Frauds? • The evidentiary function • Evidence that a promise exists • The deterrent function • a check against rash promises • The channeling function • “channels for the legally effective expression of intention”

Lon Fuller on Consideration • Does all this simply come down to the intention to be legally bound? Is that all there is?

Lon Fuller on Consideration • Does this all come down to the intention to be legally bound? • If so, what does this tell you about the standard for adequacy of consideration? A peppercorn

Wolford v. Powers 142 • What was the consideration from the Wolfords?

Wolford v. Powers • What was the consideration from the Wolfords? • Adequacy irrelevant: Restatement § 79

Wolford v. Powers • What was the consideration from the Wolfords? • What was the relevance of the subsequent care provided to Lehman

Wolford v. Powers • What was the consideration from the Wolfords? • What was the relevance of the subsequent care provided to Lehman • The past consideration doctrine • How would you apply Restatement § 86 in Wofford?

Performance of Prior Legal Obligation • A reward is offered for apprehension of a thief. Policeman catches thief in performance of his duties. • Is there consideration?

Performance of Prior Legal Obligation • A reward is offered for apprehension of a thief. Policeman catches thief in performance of his duties. • Restatement § 73

Performance of Prior Legal Obligation • A reward is offered for apprehension of a thief. Policeman catches thief in performance of his duties. • Why is this a sensible policy?

Performance of Prior Legal Obligation • A reward is offered for apprehension of a thief. Policeman catches thief in performance of his duties.

Performance of Prior Legal Obligation • A reward is offered for apprehension of a thief. Policeman catches thief in performance of his duties. • What do you think of the proviso at the end?

Performance of Prior Legal Obligation • Compromise with creditors?

Performance of Prior Legal Obligation • Compromise with creditors? • Restatement § 73, illustration 6

Does the promisee’s motive matter? • Williams v. Carwardine (p. 147) • The status of dying declarations • Timor mortis conturbat me

Does the promisee’s motive matter? • Williams v. Carwardine (p. 147) • Restatement § 81 • And if this weren’t the case?

Re GreeneWhere was the consideration?

Re GreeneWhere was the consideration? • What about the sexual services? • As future services, were these tainted by the doctrine of illegality

Re GreeneWhere was the consideration? • What about the sexual services? • If future services these would be tainted by the doctrine of illegality • Is this simply the expression of a time-worn archaic morality?

Re GreeneWhere was the consideration? • What about the sexual services? • If future services these would be tainted by the doctrine of illegality • Is this simply the expression of a time-worn archaic morality? • What’s the difference between a contract for ex ante services and palimony for past services?

Re GreeneWhere was the consideration? • What about the sexual services? • If future services these would be tainted by the doctrine of illegality • Is this simply the expression of a time-worn archaic morality? • Is there something else going on?

Re Greene: Adequacy • “for one dollar and other good and valuable consideration” • Why didn’t that work?

Re Greene • “for one dollar and other good and valuable consideration” • Why didn’t that work? • What if they had added “the receipt and adequacy thereof is hereby acknowledged” • And provided a cheque for that amount?

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