Contracts: questions of general law

  1. Do contracts require consideration to be enforceable?

  2. Does consideration consist of money and/or agreement to do something you don’t have to do?

  3. Is a gratuitous promise generally enforceable?

My understanding of the doctrine of consideration is that contracts in which one parties promises to give something to the other party must include a clause that the promisor must “get something in return.” This something doesn’t need to be money; it can be any form of advantage. It can consist in the obligation of the other party not to do something which the promisor wants him not to do (such as suing him or collecting debts - a moratorium on debts can be sufficient consideration).

Note that consideration doesn’t need to be adequate. Any form of return is sufficient, no matter what it’s worth in relation to what the other party promises, as long as there is something.

As far as I know, lack of consideration can be compensated (making the contract enforceable) if the contract is concluded in a specified form (“deed” in English law).

  1. Yes

  2. Not necessarily, see Schnitte’s answer

  3. No

(Australian position, but I think it’s pretty much the same as the US

In the U.S., that’s generally correct. Exchange of promises can be sufficient consideration.

Gift promises are not typically enforceable although note that when the gift is made the giftee is possessor of the gifted property, so the giftor cannot change his mind once delivery is made, and this state of affairs is legally enforceable: I promise to give Lib a pony; not enforceable. I actually deliver the pony, or sign it over to him – anything that effects delivery – then it’s his pony, and if I take it back he can sue me for conversion (a/k/a, theft).

There’s one wrinkle, but it’s a strange case and I don’t know tha tthe rule has ever been followed in another situation. I wish I could remember the case name, but the upshot is that a guy was walking down the street and was about to be killed by some falling object. A passerby (who had nothing to do with creating the danger) throws himself in front of the object and saves the original dude, but is seriously injured. The rescuer was partially paralyzed and had no ability to work after this incident. The guy he saved promised to provide financially for the rescuer for his (the rescuer’s) life. Years later, the guy dies, and his family wants to stop paying the rescuer’s bills. The rescuer sues and wins; the Court held that the rescue was consideration, even though it was made before anyone ever thought of the gift promise. Nobody believes this was the correct legal outcome, of course, but it’s not particularly surprising that on these facts the outcome was no surprise.

–Cliffy

Here is a good little article all about consideration.

http://www.west.net/~smith/consider.htm

The article cites the case I think **Cliffy **is talking about. http://www.west.net/~smith/Webb_v_McGowin.htm

Oh, God, I’ve created a monster. He’s actually doing what I suggested and learning about contract law. Next thing you know, since he’s an intelligent fellow, he’ll be able to discuss it intelligently, and if he can do that, he might even be able to argue his points with solid reasoning grounded in correct interpretation of the law.

This might prove interesting… :slight_smile:

There was a thread on contract law and consideration about a week ago; you might skim through that one too.

Thanks to those of you who contributed to answering the OP, and especially for the links.

Maybe it should be added, for the sake of clarification, that the doctrine of consideration is typical for common law, i.e. English-based, legal systems. Neither civil law systems, which are based on ancient Roman law and include most countries on the European continent, nor public international law principally require consideration for a contract to be enforceable.

Fascinating. I searched. This link confirms it, and also has a nice collection of case summaries on consideration in Canadian law.

Comparative Contract Law: The requirement of consideration in the common law (pdf)

French contract law