Consideration, Foreseeable Reliance and the Enforceability of Promises
Monday August 09, 2010
Your parents undoubtedly taught you that you should do what you have promised to do. That universal moral imperative probably explains why most of us perform promises we make most of the time. The law's requirement that we perform promises is, however, not quite so universal. This course begins by studying which promises the law will enforce and, necessarily, which promises will the law not enforce. The moral rules taught by your parents do not, however, suddenly become irrelevant. They are among the foundations of the law and they influence the direction of the law as it evolves in answering the question, what promises will the law enforce.
We will occupy all of September and most of October delving into the rules of the doctrines called Consideration and Reliance, the two doctrines that currently dominate the law of enforceability of contracts. Along the way we will look at other important mechanisms which have been used from time to time to determine enforceability, including the use of a seal and doctrines which prevent enforcement like unconscionability and duress.
Monday, August 23
I assume that you will all have re-read Cardozo's opinion in preparation for our first class. You should also read the Restatement of Contracts 2d (RS2d) sections listed on page 7 of the casebook. You will find all of them in the "Contracts Texts" supplement. What philosophic principles seem to underly the Restatement's §71 requirement of exchange as the central component of consideration? Compare §71 to Cardozo's holding in Dougherty v.Salt. Many of the canned briefs and commercial outlines on the market describe consideration as requiring a detriment to the promisor (the person making the promise) and a benefit to the promisee (the person to whom the promise is made). Is such a statement consistent with §§ 71 and 79 of RS2d?
Suppose that Aunt Tillie had said to her nephew: "I have always admired your teddy bear. If you will promise to give the teddy bear to me, I will promise to pay you $3,000 payable on or before my death." Assume that the nephew said that he agreed to do so. Would Cardozo have enforced her promissory note? Would her promissory note have been enforced by a court applying RS2d?
These are some of the topics we will take up on Monday evening. Please read the assignment with care and do not rush through the Note on Conditional Donative Promises. Many law students find this topic baffling; pay particular attention to the example offered by Professor Williston which is the indented paragraph on page 13 of the casebook.
We will occupy all of September and most of October delving into the rules of the doctrines called Consideration and Reliance, the two doctrines that currently dominate the law of enforceability of contracts. Along the way we will look at other important mechanisms which have been used from time to time to determine enforceability, including the use of a seal and doctrines which prevent enforcement like unconscionability and duress.
Monday, August 23
I assume that you will all have re-read Cardozo's opinion in preparation for our first class. You should also read the Restatement of Contracts 2d (RS2d) sections listed on page 7 of the casebook. You will find all of them in the "Contracts Texts" supplement. What philosophic principles seem to underly the Restatement's §71 requirement of exchange as the central component of consideration? Compare §71 to Cardozo's holding in Dougherty v.Salt. Many of the canned briefs and commercial outlines on the market describe consideration as requiring a detriment to the promisor (the person making the promise) and a benefit to the promisee (the person to whom the promise is made). Is such a statement consistent with §§ 71 and 79 of RS2d?
Suppose that Aunt Tillie had said to her nephew: "I have always admired your teddy bear. If you will promise to give the teddy bear to me, I will promise to pay you $3,000 payable on or before my death." Assume that the nephew said that he agreed to do so. Would Cardozo have enforced her promissory note? Would her promissory note have been enforced by a court applying RS2d?
These are some of the topics we will take up on Monday evening. Please read the assignment with care and do not rush through the Note on Conditional Donative Promises. Many law students find this topic baffling; pay particular attention to the example offered by Professor Williston which is the indented paragraph on page 13 of the casebook.