Question for Lawyers - Contract law and Consideration

[David_Simmons]

@Cliffy

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.

–Cliffy

Well sure, but A has been without the workshop while engaged in legal wrangling. I’m not at all convinced that money damages and finally getting one after all of that hassle is just compensation. And that’s assuming B has enough assets to make good with a replacement which is by no means assured.

[David_Simmons]

PS - Especially after B pays his attorney’s fees.

[Mr.Slant]

Would being in a state that criminalizes fornication change anything?
I know can’t contract with my friend Bob for him to be my getaway driver when I rob the Piggly Wiggly.
Is it possible to contract with someone to NOT break the law?
Could the Piggly Wiggly owner contract with my friend Bob to not be the getaway driver if I should choose to rob his establishment, complete with penalty clause?

[Gfactor]

@acsenray

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

You are correct. I made an (unspoken) assumption: The promise to be faithful was conditioned upon the initiation of the relationship. In other words, A says to B: I’ll agree to date you if you agree to be faithful; if you don’t agree, then I won’t date you. Then we have a promise for a promise. Just like an employee can be required to make binding promises to the employer (confidentiality agreement, non-compete, what have you) in exchange for getting hired. It gets a little more complicated, of course, if the relationship is already underway.

@Atticus Finch

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.

Actually, few full-time positions in the US come with such a contract. Employment here comes in two basic flavors (based on the Fair Labor Standards Act): Exempt and non-exempt.

A non-exempt employee, even one who is on salary, may be docked for hours missed (unless the contract provides otherwise). An exempt employee may only be docked for missing entire days (unless the contract provides otherwise).

[Acsenray]

A few points here:

1. Obeying the law or performing a legal duty usually is not valid consideration. If you’re supposed to do it (or not do it) anyway, then you aren’t offering anything of value.

2. I doubt very much that dating someone can qualify as consideration.

[Gfactor]

@acsenray

A few points here:

1. Obeying the law or performing a legal duty usually is not valid consideration. If you’re supposed to do it (or not do it) anyway, then you aren’t offering anything of value.

AFAIK, no law requires monogamous dating.

2. I doubt very much that dating someone can qualify as consideration.

Based on public policy the contract might be found to violate public policy because meretricious consideration violates public policy. This was discussed earlier. Otherwise, why not?

Otherwise it looks a lot like consideration.

Consideration can be a promise to do something there is no legal obligation to do, or a promise to not do something there is a legal right to do. Promises to exchange money, goods, or services are forms of consideration.

http://www.weblocator.com/attorney/mn/law/contract.html

[Cliffy]

@David Simmons

Well sure, but A has been without the workshop while engaged in legal wrangling.

Lost time can be an element of contract damages if A bargains for it.

And that’s assuming B has enough assets to make good with a replacement which is by no means assured.

Which the institution of a penalty clause wouldn’t solve anyway.

–Cliffy

[Gfactor]

Please forgive the lack of proofreading in my previous post.

[Atticus_Finch]

Gfactor - excuse me, I’m working off Australian assumptions. In the system you propose, I guess that’s how employment works at contract law.

[Gfactor]

@Atticus Finch

Gfactor - excuse me, I’m working off Australian assumptions. In the system you propose, I guess that’s how employment works at contract law.

[hijack]Now you’ve piqued my curiousity. How does it work there?[/hijack]

[Enola_Straight]

In an episode of Picket Fences a man hires a woman to act as a surrogate mother for his child, for X amount of money.

After a month or so, she realizes she made a horrible mistake…she can’t just give birth to a child and walk away, so she returns the money, apologises, andmakes an appointment for an abortion.

The man realizes that his future child is slipping away, and sues to enforce the contract.

Discuss.

[Gfactor]

@acsenray

2. I doubt very much that dating someone can qualify as consideration.

So I could get a legitimate escort for $500/hr, take up a bunch of her time, and then not pay? Then when I was sued, I could claim that there was no consideration for my agreement to pay? Cool!

[Gfactor]

@Enola Straight

In an episode of Picket Fences a man hires a woman to act as a surrogate mother for his child, for X amount of money.

After a month or so, she realizes she made a horrible mistake…she can’t just give birth to a child and walk away, so she returns the money, apologises, andmakes an appointment for an abortion.

The man realizes that his future child is slipping away, and sues to enforce the contract.

Discuss.

surrogate wins in MA

Not clear in PA (as of 1997)

Here’s a handy chart (also 1997)

[Acsenray]

@Gfactor

@acsenray

1. Obeying the law or performing a legal duty usually is not valid consideration. If you’re supposed to do it (or not do it) anyway, then you aren’t offering anything of value.

AFAIK, no law requires monogamous dating.

This was in reaction to some of the other non-dating scenarios offered in the thread, not a specific comment on dating.

@Gfactor

So I could get a legitimate escort for $500/hr, take up a bunch of her time, and then not pay? Then when I was sued, I could claim that there was no consideration for my agreement to pay? Cool!

I don’t have any citations here – just working off of gut feeling, so take that for what it’s worth. But I have a strong feeling that a court is going to view an “escort” situation very differently from an “actual relationship” situation. I don’t have contractual principles in front of me saying so, but I’m leaning towards the side that says a court is not going to enforce a contract that basically tries to enforce “good boyfriend” behaviour.

[whole_bean]

Resident family law practicioners, isn’t infidelity grounds for [p]alimony, especially if coupled with other factors?

If so, then hasn’t the OP essentiually described the concept of marriage?

[Gfactor]

@acsenray

I don’t have any citations here – just working off of gut feeling, so take that for what it’s worth. But I have a strong feeling that a court is going to view an “escort” situation very differently from an “actual relationship” situation. I don’t have contractual principles in front of me saying so, but I’m leaning towards the side that says a court is not going to enforce a contract that basically tries to enforce “good boyfriend” behaviour.

Cases on public policy as a defense to a contract are where it’s at. And I agree: many courts would refuse to enforce the contract on illegality or public policy grounds. Courts tend to be unwilling to parse the sex for money aspects of such arrangements from the money for other stuff aspects.

But I’m speaking in generalities. California seems very willing to explore the details of cohabitation agreements:

“[Even] if sexual services are part of the contractual consideration, any severable portion of the contract supported by independent consideration will still be enforced.”

http://www.danpinello.com/Whorton.htm (quoting Marvin v. Marvin)

Courts in other jurisdictions have concluded, as we did in Margolies v. Hopkins, supra, that an express agreement between adult unmarried persons living together is unenforceable only to the extent that it explicitly and inseparably is founded on sexual relations.

http://lw.bna.com/lw/19980519/07621.htm (this case suggests, however, that a contract whose sole purpose was to require the fidelity of the parties would be void).