Can an email be a binding contract?

Factual Questions
21

The fact that aha wouldn’t get anything from performing this action.

Here’s a counter example.

Suppose you asked someone to do home repairs, and that you’d pay for materials. You’d be handing them cash for the materials, so that should be consideration, right?

But the fact that they don’t get to keep this money means that they don’t really get anything.

Now, imagine that they already bought the materials and you were paying them back. They do get the cash you give them, but it does go against an equal expenditure in their bookkeeping, specifically that which paid for the materials. So they’re still not ahead anything.

Now, compare this to aha. He would get the money his friend gave him, but this would be just to pay off his expenditure in buying the item for the friend. He wouldn’t end up with anything for his time or trouble.

Thus, imho, no consideration.

And yes, we all know what consideration is, thank you. If there’s a specific phrase in that quote that indicates your point of view, bold it or requote it. All I saw was a textbook description, the same one we were using, when we decided that it wasn’t there.
Chronos, the thing is that if I sell you a box and tell you it’s a game, there’s nothing to indicate you don’t actually own it, that you only own a license to play it according to my rules. That doesn’t change if the game is a puzzle or a board game. Why should it change if there’s a CD-ROM in the box and the game is a puzzle program?

I still maintain that you own that copy. Your rights with regard to certain actions, specifically those which violate copyright law, are limited, but you still own that copy and the rights to do anything not specifically forbidden by law with it.

I haven’t seen any evidence to the contrary, just the claims of software companies, those with the most to gain if I believe them.

22

DS, I beg your pardon, but the OP says, “When I got back off vacation **I had it delivered to you ** and you refused to pay the hundred.” (emphasis mine)

Predicated on that, I suggested unjust enrichment was a tenable cause of action.

Assuming your interpretation - that aha buys it based on the friend’s promise to pay him back, and when the friend refuses to pay, aha keeps the merchandise - I agree that there is no unjust enrichment. But my other suggestion was a theory of promissory estoppel – aha relied on the friend’s promise to his detriment. Why isn’t that a tenable cause of action?

And for the record, I agree that consideration, and a contract, existed. But the existence of a contract should not remove any rights to pursue a tort theory of recovery, should it?

  • Rick
23

Let me jump in here and make a statement. What if the thing that you asked me to buy was, let’s say for arguments sake, a part for a wheel chair that you needed, but was completely useless to me. Wouldn’t I be out the money for a completely useless purchase? I don’t have any need for a wheel chair part. And what about my time and expense for shopping for this object?

And how does this differ from many cases I have seen on judge wapner et al where the girl friend fronts the boyfriend the money for repairs on the car on his verbal promise to pay her back. Seems like the promisor ( boyfriend) NEVER win in those cases. Or is this comparing apples and oranges?

I Don’t Know Whether To Kill Myself Or Go Bowling.
famous C&W song

Yours truly,
aha

24

The adequacy of the consideration is generally not relevant to the existence of consideration. If I promise to buy a piece of cheese from you for ten thousand dollars, that’s consideration. The fact that it’s a horribly bad bargain for me is beside the point. The real contract in aha’s example is not “I’ll reimburse you for buying a gewgaw for me.” It’s “I’ll buy a gewgaw from you for this amount.” How aha obtains the gewgaw (assuming he is not trafficking in stolen gewgaws) is irrelevant to the contract itself. aha’s associate promised to pay aha for a gewgaw and aha supplied it. aha is owed the money.

25

You would be entitled to recover the agreed-upon price for the wheelchair part. You would probably not be entitled to collect anything additional for your time and expense as you could have negotiated for a separate payment for time and expense at the time the contract was formed. You could, however, ask for attorney fees and court costs.

It’s comparing two different types of contracts, but the rules of contract law still apply. If I promise to lend you money and you promise to pay it back, and you don’t pay it back, you’ve defaulted on the loan and violated the contract.

26

I won’t run this in the ground and I do appreciate all your responses.

But let me ask one more question. Let’s say you were a recording company and I was an artist. I was signed with your recording company as an artist and while I was signed to your company you trademarked the name of my band. Years later you still owned the trademark to that name but emailed me and promised that you would legally give me the right to that band name. My question then is…could I hold you to it using the email if you were not forthcoming on your promise?

I Wanna Whip Your Cow.
famous C&W song

Yours truly,
aha

27

Here we may have a failure of consideration.

What did you provide the record company in return for their concession?

Again, if you relied on their promise, you might be able to recover under a promissory estoppel theory. But in the facts you describe above, I don’t see mutual consideration.

  • Rick
28

Let’s say for instance millions of records sold in the past. Written by myself and other members of the band.

I Wanna Whip Your Cow.
famous C&W song

Yours truly,
aha

29

Sorry, Rick, I read what aha said as meaning: I tendered delivery and wasn’t paid. Clearly, if he handed the item over and wasn’t reimbursed for it something else might be available as a cause of action. Sorry. :slight_smile:

But let’s not get away from the main point: there is a contract, valid and enforceable, at least as far as ‘consideration’ goes. Those who don’t think so don’t understand that consideration doesn’t equal profit. For those still missing the point, from the definition given above: “The cause, motive, price, or impelling influence which induces a contracting party to enter into a contract.” Since aha wouldn’t have bought the item without the promise of repayment, the promise is the ‘impelling influence which induces a contracting party [aha] to enter into [the] contract.’

30

Hmm. I think that would be past consideration, which would not serve to satisfy the requirements of a future promise.

Any litigation in this example would probably be instituted by the holder of the trademark after you used the trademark. The holder would argue trademark infringement and the email would be defense exhibit 1 that you had permission.

31

I disagree with those who argue that the OP’s example has consideration flowing to the friend who makes the purchase. **(Warning: mindnumbing legal intricacies follow.) **While I haven’t spend a lot of time researching this (and I’m not about to), I think some of the previous responses are missing some important points.

First, consideration must flow both ways. Clearly, the person who requested the purchase recieved consideration in exchange for his promise. (He got the item, or to be more accurate, the undertaking to supply the item.) The purchaser of the item did not. His motive in making the purchase was as a favor. He gained nothing. And the question of gain or profit is relevant here. Lipken v. Koren, 64 N.E. 2d 890 (Ill Sup. Ct. 1946); Steinberg v. Chicago Medical School, (Ill. Sup. Ct. 1997). There must be some benefit or profit to the promisor or detriment or forbearance by the promisee.

Adequacy/inadequacy of consideration, as someone correctly said, is not generally an issue for the courts. That isn’t the same as determining whether consideration exists in the first place, a question that will be determined by the courts.

The analogy to a resale used by someone else is also flawed. This isn’t a case where a merchant bought a widget for his inventory for $X and later resold it for the same amount. In that case, the decisions were independant and presumably made with the hope of making a pfofit. Just because the second sale was for no gain (or even if it were for a loss) does not change that, or mean that there is no consideration. In our case, on the other hand, the friend always knew that the best that he would do is break even. The OP makes it very clear that his motivation was that of a friend doing a gratuitous favor. A better analogy, I think, would be in the principal/agent area. The friend-agent agreed to procure the item for his principal. Since the agent gets no benefit here, no contract is formed.

One point that I didn’t consider when I began this response: Can the party who gave no consideration raise this as a defense, or is it available only to the person who got no consideration? Under the OP scenario, it is the prospective plaintiff who got no consideration, so maybe the issue could never come up. My guess is that both sides can raise it, because the plainitff needs to plead and prove the contract, and consideration flowing both ways is an essential element of a contract claim.

32

That was me.

That was me too. What I said was that the contract was not “buy this and I’ll pay you back.” It was “I’ll buy one of these from you.” I see what you’re saying, but I still think if it came to it a judge would find consideration flowing both ways in this situation.

33

Although, like Bricker, the civil stuff is a long way away, I would think there is consideration, in the sense of mutual promises. While a bare promise can’t be consideration, an exchange of mutual promises can be:

A: If you buy the widget on your vacation, I promise to re-imburse you.

B: If you will re-imburse me, I promise to buy the widget on my vacation.

Mutual obligations created by mutual promises.

(That’s my answer at common law. Under civil law, I believe this would be an enforcable quasi-contract at the least. And, under civil law concepts of consideration, where a promise can be consideration, I would think there’s a good argument it’s a contract.)