a performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise 1
A promise of a gift/”mere gratuity” is not an enforceable promise because there is no inducement - a responding promise must be induced by the original request ( Kirksey – there was no request; sister-in-law moving was not induced by his promise; it was merely a gift – would probably get different result today by PE) o Sometimes where it seems like a gift we will still manage to find consideration ( Hammer – forbearance to act as he wished ) o Sometimes a promise of a gift will be enforced on promissory estoppel ( Ricketts v. Scothorn – grandfather promises $ to granddaughter who relies on it and quits her job ) Motive is not good consideration ( Kim v. Son ) – intending to do something is not enough to constitute a promise Forbearance to act/Giving up a legal right to do something is good consideration ; ( Hammer v. Sidway – did not drink, smoke and gamble - a legal detriment, though perhaps not an actual detriment ; Langer v. Superior Steel – he did not go work for the competition ) Promise to a third party can be good consideration even if already made the same promise to a second party, because consideration is only between the promising parties ( Shadwell – promise to marry a girl already engaged too for promise for an annuity was good consideration ) Past consideration is no consideration ( Langer v. Superior Steel – consideration for the promise of retirement bonus could not be the years of loyal service ; Lanfier – promise to give painting if name baby after him when baby is already named is not good consideration because it is past consideration, so no inducement ) o If you have already performed your part of the bargain, then it is not part of the current bargain. Something you have already done cannot be part of a future exchange. Must give something for THIS promise. Forbearance to sue is good consideration , as long as you have a reasonable and honest belief in the viability of the suit ( Palmer v. Dehn – finger cut off; even though the accident is past; forbearance to sue is the consideration for the promise to pay ) The objective meaning of an agreement can only be enforced if that is the meaning intended by both parties ( Bogigian – court ruled no consideration where one party knew that the other did not intend the objective meaning ) Where a promise is offered without expectation of exchange of promise or performance, that promise is gratuitous as it lacks consideration, even if it is in writing ( Jara v. Suprema Meats – Sr. gave no consideration for Jr.’s promise – his investment and loans were past; there was no inducement and the promise was gratuitous ) Desire to exist in posterity is good consideration ( Allegheny – promise to pay if they set up a fund in her name ) Meretricious consideration is no consideration ( In re Greene –
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- Summer '11
- The Land, promise