Special Issues with Consideration

AuthorFranklin G. Snyder, Mark Edwin Burge
Unit 8
Part Two
Special Issues with Consideration
Some promises are relatively trivial, such as promising to pay back a dollar
you borrowed to get a can of soda. Some promises are extraordinarily solemn and
important, like a promise to deliver the last letter home for a dying soldier. But
enforceability, as we have seen, does not depend on the importance of the promise,
but on whether it is supported by considerationwhether there is, in the language of
the Restatement (Second) of Contracts, a “bargained-for exchange.”
Modifications? Recall the preexisting duty rule from the last unit. We talked
about duties arising under law, but duties can also arise under contracts. Suppose
you have a contract to paint your neighbor’s house $5,000, but you now refuse to do
so unless the neighbor promises to pay an extra $500. As you have a contractual
obligation to paint the house $5,000, there is no consideration for the extra $500. As
you will see from the following materials, however, it may not be quite that simple.
Benefits Already Received? The preexisting duty rule, as we saw, was based
on the idea that you can’t bargain for something you’re already entitled to. But what
about bargaining for something you’ve already received? You might think that after
the cases in the previous unit, the answer would be easy—if you’ve already received
something, you are almost by definition not bargaining to get it. An important and
oft-cited English case, Hunt v. Bate, 73 Eng. Rep. 605 (C.P. 1568), made it clear that
a subsequent promise to pay for something already received was not enforceable as a
contract. A gift followed by a return gift does not make a “bargained -for exchange.”
Yet the doctrine was never quite that clear. In a series of cases, nearly all involving
debtors who had promised to repay loans after the loans had been discharged in
bankruptcy or barred by the statute of limitations,
courts held that if the prior
[You are probably familiar with this concept, but statutes of limitations are rules that require
lawsuits to be brought withi n a particular period of time . Thus, in a particular state a contract claim
benefit was money received, the subsequent promise was enforceable without new
consideration. The reasoning generally was that a debtor was always morally
obligated to pay back the money, even if the debt was unenforceable, and so that debt
acted as consideration.
Moral Obligation? But there obviously are “moral” obligations beyond just
repaying debts. In Style v. Smith,
another sixteenth century case decided only a few
years after Hunt v. Bate, the court raised a hypothetical:
If a physician, who is my friend, hearing that my son is sick, goeth to
him in my absence and helps and recovers him, and I being informed
thereof promise him in consideration . . . to give him £20 an action will
lie for the money.
In other words, said the court, the father must pay even though the promise came
after service was performed. But many cases went the other way, including the
influential Eastwood v. Kenyon, 11 Ad & E 438; 113 ER 482 (Q.B. 1840). Professor
Brian Simpson concluded the English rules relating to moral consideration were
“easier to state than to explain.” As you can see from the following cases, these
English rulesin all their confusionwere imported largely intact into American
As you work through the problems and the readings, try to articulate whether
liability is based on the idea of the promise or the idea of some kind of exchange.
Consider sections 86 and 89 of the Restatement (Second) of Contracts in connection
with the materials that follow.
might have to be brought within four years of the breach; if you wait longer than that to file suit, the
claim is barred.Eds.]
[There is no citation and no formal report of Style v. Smith still in existence, although the
language was referred to and relied upon in later decisions. The quote here is taken from A. W. BRIAN

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