Consideration
must have to qualify as a legally enforceable K - a bargained for exchange in legal position between 2 parties
Elements of Consideration
& guide post
- bargain for exchange
- legal detriment
Guide post - was there a benefit to the Promisor
[1] Bargained for exchange
requires that the promise induce the detriment and the detriment induce the promise.
* Mutually Induced*
[2] Legal Detriment
is if the Promisee does something he is under no legal obligation to do OR refrains from doing something that he has every legal right to do.
Illusory promise
Objectively not really a promise. There is a way out, within the discretion of the promisor.
Condition on a gift
incidental detriment - a promise that caused detriment. no consideration
Nominal Consideration
consideration that is so insignificant as to bear no relation to the value of what is being exchanged.
Good Faith
[consideration]
honesty and sincerity of intent. Is detriment and can be used in making a binding K.
Bilateral K
promise to promise. A K which each party promises a performance so each party is an obligator and obligee
Past and Moral Consideration
not sufficient consideration, performance was already given before the promise was even made
Promissory Estoppel
The principle that a promise made without consideration may nonetheless be enforced to prevent injustice if the Promisor should have reasonably expected the promisee to rely on the promise AND if the promisee actually did rely on the promise to his detriment
Promissory Estoppel Elements
- A clear and definite promise
- the promisor intended to induce reliance by the promise AND the promisee relied on the promisee’s detriment
- the promise must be enforced to prevent injustice
Pre-existing legal duty
Traditionally the promise to perform, or the performance of, an existing legal duty is not consideration.
Contract
a promise or a set of promises, for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as duty
Expressed K’s
are formed orally or written
Implied K’s
are formed by manifestation of assent other then oral or written. By “conduct”… ie barber
Quasi K’s
are not K’s at all. they are construed by courts to avoid unjust enrichment by permitting P to bring an action of restitution to recover the amount of the benefit received by the D
Bi-lateral K
Exchange of mutual promises
Unilateral K
acceptance by performance. the offeror requests performance rather then promise. Promisor promises to pay upon completion of the requested act. Only 1 promisor and 1 promisee
U.C.C.
uniform commercial code - supplants the states common law when the common law conflicts with that statute. Used for the “sale of goods”
Common Law
judge made law through opinions. Used for “property and services” (everything else)
Creation of a K
for a K there has to be…
- was there mutual assent
- was there consideration or a substitute
- are there any defenses to the creation of the K
Moral Obligation - Promise made in recognition of past benefit
$?
Promise for benefit received…
- Promisor in receit of uncompensated benefit
- Benefit was not a gift. (was there intent to charge?)
- promise in recognition
- Promise not binding to the extent that the value of benefit is disproportionate to promise
- Binding to the extent necessary to prevent injustice $86
Unjust Enrichment
- C/A, rule & remedy
- plaintiff confers an uncompensated benefit - goods, service - quantum meruit
- [Was there a benefit?] - intent to charge (objective test, but can be infer.)
- not a gift - benefit must not be imposed
- accepted
- emergency situations
REMEDY - Restitution
