All law students are familiar with the contracts case from the 1800s where the uncle promised to pay his nephew $X if he refrained from drinking, smoking, whoring around, playing cards, and the like until age 21. The argument was that the contract had no consideration and wasn’t enforceable. But the universal rule that came from that case was that it IS an enforceable contract because the kid gave up something that he was otherwise legally entitled to do in exchange for the money.
The Kaplan professor said that in this day and time, the drinking provision would likely be struck down because it is a pre-existing duty for someone under age 21 not to drink. Is this correct?
I always understood the pre-existing duty rule to extend to a party, not law abiding behavior in general. So let’s update the hypo:
I promise by 42 year old brother $15000 if he refrains from smoking crack cocaine for one year? Enforceable?
Going way, way back, but my recollection is that refraining from an illegal act cannot serve as consideration in a contract. Refraining from legal acts that the party has a right to engage in can be consideration, but not illegal acts.
Thanks for the answers. So, take the original contract and put it in 2013. What part is invalid? The whole thing or only the drinking provision? What if the kid didn’t smoke, whore around, or play cards, but he drank a fifth of whiskey every morning for breakfast? Does he still get the money, or is the whole contract void?
Contract is enforceable against nephew. Uncle is still getting the benefit of the bargain by his nephew’s forbearance from activities he is permitted to do (smoking, fornicating, card sharping). So in other words, there is consideration and a valid contract has been formed.
Pre-existing duty rule is a defense to formation. A contract will fail to exist only when the pre-existing duty is the solitary item of consideration. When the consideration includes both pre-existing and new duties, the overall effect will be in favor of formation. (There is some city garbage collection case that I remember reading that at least is in Accord with this view.)
So, now that we’ve established there is a valid contract, what happens if the pre-existing (but not new) duties are violated. I think it’s pretty clearly absurd to hold that violation of a duty existing before and within the contract at issue should not work a breach of contract.
“The contract said you had to do X. You failed in doing X. We contend that performance is accordingly excused.”
“Nuh-uh. I had to do X anyway. Quite apart from the contract, which also purported to obligate me to do X. Therefore, performance remains due.”
This really is kind of silly. You can’t argue against breach because you were multiply obligated to render performance.
Not a lawyer, but it is not universally illegal for a person under 21 to drink. For instance, I believe most states allow underage consumption for religious services, and at home with the permission and supervision of a parent/guardian.
And the drinking age in general in Puerto Rico is actually 18, even though PR is a US jurisdiction. It would be interesting to consider if that could affect the entire clause, making “Child promises not to drink until age 21” when the child is 18 into a non-prior duty clause because even though the kid lives in Kansas, he could up and go to PR and order a legal cerveza in Old San Juan and come back without breaking Federal, Puerto Rican, or Kansas law.
OK, but the parties to this contract live in the state of Minnesconsin, where it is illegal for a person not yet twenty-one years old to drink alcohol under any circumstances whatsoever. Now what, smart guy?
It would seem so, but shouldn’t there be a goose/gander thing at work? If I can’t get the money for not drinking because it’s an improper contract term, then shouldn’t Uncle not also get out of paying because I do drink illegally? (I also like the argument that he gave up a legal detriment to get on a plane to the Bahamas and drink. Even in Pennsyltuckyconsin there is no law against traveling to drink under age 21).
So how about this revised contract: My nephew gets $40k if he refrains from speeding in his car, drinking, committing murder, smoking, playing cards, or fornicating until age 21.
If I can find a witness that says he was going 72 in a 70 zone, he doesn’t get any money, even if he does none of the other things? We’ve established that the “contract for not speeding” is invalid as a prior duty.
Here’s where I think you are going wrong. It is not an “improper contract term,” rather it is the case that there is no formation of a valid contract where there is no consideration. And pre-existing duties cannot serve as consideration because they represent bringing nothing new to the table. Consideration, these days, is analyzed according to whether it looks like a bargain — do both parties promise to do something (or refrain from doing something) in order to get something (a payment, a desired good or service, or a desired forbearance from detested behavior).
So, once you get over the formation hurdle, FORGET EVERYTHING about the pre-existing nature of the duty. It’s not relevant anymore.
Right. This, I think, is your original example, with a different peccadillo swapped in. Because not all of the acts are PEDs, I’d say a contract is formed (including as terms all the duties listed, pre-existing and new). Now that we’ve established that the contract is formed with these terms, we don’t care about their pre-existinghood when it comes time to determine whether there was breach.
Remember, PED rule is meant to prevent contracts that lack consideration (because we wonder if it is a good use of social resources to enforce faux-contracts that tend really to be just elaborate gifts intra-intimates). (And frankly, the rule requiring consideration is not super well-justified, but there it is.)
Thus, if there is at least some real-deal consideration, you’ve averted the looming perils of a world where contracts might be formed without consideration passing. So there is no reason to parse out terms as pre-existing and new. It is enough that there are some new duties to save the contract as a whole.
I had understood that restrictions placed on a gift prior to the actual delivery of a gift might be enforceable. Restrictions on a gift afterwards might not.
Excellent analysis and now I agree. However, I do think that consideration serves an important goal. Do we really want the power of the state to come down on people to enforce every gratuitous promise even if we had unlimited resources? That would seem to be a North Korean-style police state almost.
If a guy promises his wife that he will do more work around the house and buy her flowers, and then does not, should the state force him to do so (or pay her equivalent money damages)? I think it’s good that private promises are up to the conscience and morality of the promissor. Only when there is benefits or detriments on both sides should the state become involved and consideration serves that purpose.
That’s an interesting twist. I hire my brother for one year at a $40k salary. His job is to watch the big oak tree in my front yard to make sure that aliens don’t steal it. He must check on the oak tree at least once every two months. However, a condition of his employment is that he pass a weekly drug test.
Yeah, there are a lot of ways to skin a cat, but my OP was about the finer points of contract law.
Presumably, in order to pass a weekly drug test, he must agree to take a weekly drug test. Taking a weekly drug test is neither required nor prohibited by law, so taking a weekly drug test would be consideration, no? In other words, no need to hire him. Just write into the contract that he must take a weekly test.
Also an interesting way. Of course, he would have to take AND pass that weekly drug test. But he has a pre-existing duty to pass the drug test (by refraining from using illegal drugs). *smh
But under the analysis above, since there is one item (the taking of the test) that isn’t a pre-existing duty, then the contract is valid.
Okay, new hypo. The textbook example of a pre-existing duty is a contract with a police officer to catch a criminal. It’s unenforceable for no consideration: It’s already a cop’s job to catch a criminal. My grill is stolen so I enter into a contract with a cop:
I agree to pay you $500 if you, 1) catch the guy who stole my grill, 2) place your right index finger on your nose. Enforceable?
He doesn’t have a duty to touch his finger to his nose, so is that valid consideration? Enough to enforce the provision about catching the thief?