Question for Lawyers - Contract law and Consideration

My friends and I were having a discussion last night and someone mentioned that dating would be a lot easier if you could have “dating contracts” that would obligate the parties to conform to certain behaviors and would make them monetarily liable if they breached the contract. Sure, this wouldn’t make all relationships automatically hunky dory, but it would sure make a person think twice before they decide to cheat, right? New Year’s Eve drunk talk. :smiley:

Anyway, the idea got me to thinking, and I started wondering what it would take to make a contract like that valid. After a bit of online research, I found that in order for a contract to be valid, it must include offer, acceptance and consideration. My understanding is that consideration must include something of value that is given in exchange for getting something from another person. If this is the correct take on it (and please, tell me if it isn’t), could there be sufficient consideration in a contract like this one?

For instance:

Party A signs a contract with Party B, agreeing that he will remain faithful for the duration of the contract period (assuming that the contract defines the parties’ definition of “faithful”), and if at any time, he is found to be unfaithful, he will be in breach of the contract and will be obligated to pay Party B a monetary award.

Would this be valid? Would Party B have to give up something as well? What if both parties enter into the agreement (both promising to be faithful or pay up)? Does that count?

Please note that I am not looking for Legal advice. This is merely curiosity spilling out of late night drunk talk. I just thought it was an interesting concept.

I’m a second-year law student, not a lawyer. However, I made decent grades in Contracts I & II last year. :slight_smile:

The general rule of thumb is that anything of value, if tendered and accepted with the mutual agreement of both parties that this is consideration, will be sufficient. This principle is so thoroughly established that there’s a maxim about it: “A peppercorn will do.”

The other kind of consideration is when someone forgoes a right. E.g., an uncle promises to pay his nephew $5,000 if the nephew doesn’t smoke or drink before age 30: The nephew has a right to do these things, and since he forgoes his right, this can constitute consideration.

There are (of course) exceptions; the only one I can think of off the top of my head is that “sham consideration” is not acceptable. This means, as I recall, that the thing given as consideration is of minimal or nonexistent value, and both parties agree that they’re only doing this to fulfill the legal requirement of having consideration. I think there was a case on this in which an uncle (why is it always an uncle?) said to a nephew, “Bring me that piece of paper, child, and I’ll leave you Item X in my will.” This was found NOT to be consideration.

There are also things like “intangibles,” which aren’t consideration. E.g., love and affection. A promise to “love someone forever” is not an enforceable contract, of course, even if it’s mutual and there’s consideration (such as a wedding ring).

Hope this helps; I hope some actual lawyer will come along shortly to explain in detail how I’m wrong.

Oops, I forgot to address your specific questions:

There’s never a definite “yes” until you get into court and see what the judge says, but I think it would be enforceable.

Yes; B would have to tender some kind of consideration. No consideration=no contract. (In notespeak, “No ¢ = no K.”) If A just signed a paper agreeing to remain faithful, and B had no part in it, or even if B just witnessed it or something, that would not be an enforceable contract. (And thank heaven; imagine if every statement of intent were enforceable in court.)

I can’t imagine why not. If fidelity is valid consideration for one party, it’s valid for the other.

There are lots and lots and LOTS of rules on this, covering every conceivable variant on the contract situation. If you’re curious, Google “Restatement (Second) of Contracts” and you’ll learn more than you ever wanted to know.

Again: I am not a lawyer.

Not a lawyer but in the one semester of law I took at the University of Iowa I learned that in Iowa a part of the consideration had to be money. Many Iowa contracts started “In return for $1 and other valuable consideration blah, blah, blah.”

Thanks for all the great information, Jackelope! My eyes are burning now from staring at the screen all day, but I’ll definitely check out that google. Seems like I might on to something, here! :smiley:

David, so…if the contract read “in exchange for $1 I agree to remain faithful for a period of 30 days” (for example), that would make it valid?

Let me try to remember. A contract is valid if there is valuable consideration, there is a meeting of the minds, i.e. both parties are fully aware of what is being contracted for and what the terms are, it is not against public policy or to perform an illegal act, is possible to perform. There might be something I’ve forgotten but I don’t think they would bear on your question.

Yes, I think that’s a valid contract although you might want a few more details. Like a definition of “faithful,” definite starting and ending times and dates such as “… I will remain faithful in conformance to the definition in Section. ___, from 1201 AM Pacific Standard Time on 1 January 2006 until 12:01 AM Pacific Standard Time 30 January 2006. Times to be determined by the SDMB time.” Something along those line. And of course there would also have to be a clauses as to the handling of disputes, any penalties for failure to perform, etc., etc,. etc.

Contracts ain’t easy in their construction, performance or enforcement. And having gone maybe a few yards past my limit, I’ll retire now and let someone more skilled in the area take over.

I will add one more thing. The most important feature in any contractual arrangement is goodwill and a desire to get the job done on the part of both parties. If you don’t have then I think it is right next door to impossible to write a contract that doesn’t have something in it to fight about.

David, I only have one thing to say here: O. K. Patton, Clarence Updegraff, Percy Boardwell and Mason Ladd. That ought to bring on night sweats.

If both sides agree to give up something valuable (including refraining from specified actions), there should be consideration.

However, I think that the problem with this proposed contract would be in damages. Generally, under contract law pure monetary “penalty” clauses are unenforcable. This would render a clause saying that a party will owe some dollar amount if he or she breaches would likely not be enforced. There would have to be a showing that the non-breaching party actually suffered financial (and probably not emotional) damages, and any award would likely be limited to the financial damages suffered.

(There is a concept called “liquidated damages” where the parties agree to a specified amount of damages on a particular type of breach, but for this to apply there must be actual damages in an amount that is difficult to estimate in advance,)

In addition, there is the possibility that a court might find the contract void on public policy grounds.

That’s interesting. I thought a contract was basically just a “promise” to do or not do something. :smack:

Billdo’s got it.

Better to think of it as a deal, a quid pro quo - it has to go both ways, if you will. The elements of a legally enforceable contract in Australian law could be summarised as:

  • Agreement, aka offer and acceptance - Person A: “I’ll do x, if you’ll do y.” Person B: “It’s a deal.”
  • Consideration - the requirement that both parties obtain something of value
  • Intention to enter into legal relations - what divides a legally enforceable contract from an offer to do the dishes if your friend will get the milk from the store.
  • Capacity to enter into a contract - the parties must be competent adults eg not 12 year-olds.
  • Certainty - a certain degree of clarity about the elements of the deal - who gets what, when.
  • Legality - you can’t make a contract to break the law, eg taking out a hit on someone.
  • Privity - the principle that a contract only binds the parties, and hence is only enforceable between the parties. If Person A makes a deal with Person B, and part of that deal is that Person C will get a million bucks, Person C can’t sue for breach of contract when they don’t get the cash.

There are actually legally binding instruments that would better fit your “promise” description above, such as a deed. If I want to gift you something, with no obligation on your part, I’d deed it to you.

To get around Billdo’s point about penalty clauses, you could set up the contract so that Person A will continue to give Person B a regular amount of cash, so long as Person B remains faithful. If not, the contract is breached and thus terminated, and Person B loses the money. Sounds dangerously close to prostitution, though.

I agree. Consideration isn’t the problem here. It’s the liquidated damages/penalty issue:

(Citations omitted).

Here is a case that talks about some of the public policy stuff.

It seems to me that the most useless part of a contract is the penalty aspect.

Suppose A contracts with B for B to build a workshop on A’s back lot. The building turns out to be a mess. The roof leaks, the building is out-of-square to the point that the door won’t close and the windows won’t open, and on and on.

All A can do is try to collect for damages, such as damage to his tools, loss of business, if any, etc. What he really wanted was a workshop which he doesn’t have and won’t have until the mess is settled so that the building can be torn down and replaced.

The penalty, damages etc. don’t really make A whole. Or at least I don’t think so.

This essentially makes the contract a unilateral one. You could structure it so that the payment was not for *having *sex (with you), but for not having sex with anybody else, which makes it look a little less like prostitution. It’s a kind of non-compete agreement then. :wink:

Nah. In your hypo, part of the compensable damages include the cost for A to go out and find another builder to do an acceptable job. A bargained for a legit workshop; he did not get it. Therefore, B is required to give him one, either by replacing it or by giving A the difference in price that A would require to get it done by someone else. There is no need for a penalty clause here, because the damages recognized by the law of contract will in fact make A whole.


Presumably B makes some kind of acceptance, some kinda guff about loving, honouring and obeying, right? Also, perhaps B’s got some special sexual services - back rubs, no doubt - that only he / she can provide, so the contract wouldn’t be open to the world at large…

Actually, I like it better without the promise as acceptance. A unilateral contract is accepted by performance. The offer can be specific to one individual. Like employment contracts. So B to A: I’ll give you $50 (consideration) for each month that you remain faithful to me (consideration). If A remains faithful, A gets the money; if not, then not.

Most employment contracts are based on the same idea(neglecting benefits issues and union contracts for simplicity). I’ll pay you $20 for every hour you work. If you don’t show up, you don’t get paid. (Obviously, it gets more complicated when you factor in vacation, sick time, and stuff like that). Few employers will pay you a salary merely for promising to work.

That sounds like a good description of a casual position, but I’d say a full-time position for which you sign a contract would better fit the classic promise-for-promise model. I promise to be a full-time lion-tamer, for which you promise me a certain yearly salary. A contract is signed saying this. If I don’t show up to work, I can eventually be fired, but it’s not like you can fail to pay me for each hour I fail to turn up. It’s my general promise, my general services as a lion-tamer that are important, not my hour’s work with the whip and chair.

It does seem from the OP that there is a lack of consideration from Party B.

The most basic definition of a contract is that it is a legally enforceable agreement in which all parties are both giving and receiving something of value.

Everyone has to be giving and receiving something of value; otherwise, it’s just a gift. And gifts are not legally enforceable.