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Unformatted text preview: Contracts Professor Gillette Fall 2006 I. WHICH PROMISES GET ENFORCED? CCM ppg. 22-39 (Enforceable Contracts) Consideration as a basis for enforcement If we should not enforce every promise, then which ones should we enforce? In old England common law, covenant, debt, and assumpsit actions were used to enforce promises. Covenant dealt with seals, which were representative of a promise. Debt dealt with enforcement between promisor and promise, Assumpsit is doing something inconsistent with how it was supposed to be done. Assumpsit was the most important and its scope expanded from merely misfeasance (doing something bad) to nonfeasance (not doing anything at all) and assumpsit as a basis for the enforcement of promises. Strangborough v. Warner demonstrates major usage of assumpsit to enforce nonfeasance of promises. There is now a system of multiple types of agreements, but also a greater effort to deal with contracts together as a whole. Consideration refers to whether or not an action is eligible to be performed. In contract cases, consideration grew to include whether the promisee had lost, and promisor had gained. Family Contracts: Informal, private realm safe from public enforcement is now becoming more commercialized and legalized. Hamer v. Sidway Defendant argues that consideration does not exist because promisee benefited from refraining from vices. However, court rejected this claim. Rule: It does not matter whether or not promisee benefited from promisor’s benefit, so long as a promise was made and one party suffers from its nonfeasance. Consideration given to the opportunity costs of legal freedom of action people occur when engaging in promises. Also does not matter whether or not the promisor benefits. Gratuitous promises may or may not suffice consideration. Gratuitous transfers have sufficient consideration, but promises are more in a gray area. Courts generally do not make value judgments on adequate consideration. Gratuitous Promises Fiege v. Boehm Plaintiff sues defendant for failing to pay child support. Defendant had promised money in exchange for not initiating bastardy proceedings. Defendant alleges he paid some money to keep his mother from the truth. Performed paternity tests some months later, found not to be father, so stopped paying. Plaintiff then filed charge of bastardy. Acquitted in criminal court, but superior court jury found for plaintiff. Defendant filed motion for judgment n.o.v., which was overruled, so appeal was field on grounds that plaintiff’s forbearance was based on false information, so contract was without consideration. Court states it is not sufficient consideration when you get payment for forbearance of a false claim, but it is Contracts Professor Gillette Fall 2006 sufficient consideration if there is belief that such claim (pregnancy) may be well-founded. Thus, the court finds that because the forbearance was made in good-faith, the appellate court’s decision was the right one. Courts try to penalize suits that are falsely represented and for which evidence is lacking right one....
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- Fall '06
- The Land, Professor Gillette