Consideration

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Always Credited
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Re: Consideration

Postby Always Credited » Wed Oct 13, 2010 11:33 pm

JazzOne wrote:
Cupidity wrote:
Desert Fox wrote:What I'm not clear on, is cases where the promisor doesn't actually benefit, but the promisee is harmed. Like paying someone to run 20 miles.


Consideration can be either a benefit to the promisor or a detriment to the promisee. Think Hamer. Nearly anything can be consideration, however it must be genuine, IE: not a joke, not a fraud, and no money for lesser money.

Lucy v. Zehmer


objective test pewpew'd zehmer

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Cupidity
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Re: Consideration

Postby Cupidity » Wed Oct 13, 2010 11:40 pm

Always Credited wrote:
JazzOne wrote:
Cupidity wrote:
Desert Fox wrote:What I'm not clear on, is cases where the promisor doesn't actually benefit, but the promisee is harmed. Like paying someone to run 20 miles.


Consideration can be either a benefit to the promisor or a detriment to the promisee. Think Hamer. Nearly anything can be consideration, however it must be genuine, IE: not a joke, not a fraud, and no money for lesser money.

Lucy v. Zehmer


objective test pewpew'd zehmer


Touche' take that you holmesian bastard.

dakatz
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Re: Consideration

Postby dakatz » Wed Oct 13, 2010 11:49 pm

I wouldn't even think of it in the old-time benefit/detriment sense so much. As a few posts have said, it is about whether or not something was bargained for. Sure, you have your exceptions with moral consideration and Webb v. McGowin type situations. Ask yourself 2 questions: 1. Was there a legal detriment (some kind of action or forbearance?) 2. Was this what was actually bargained for? Be careful on this second point, because people tend to mix up the necessary conditions for accepting a gift with the concept of consideration. (i.e. If I offer to give you my TV and you have to pick it up at my house, the trip you make to my house is not consideration even though you technically did something in return for my offer of a TV.) Essentially I'm saying the same thing that pretty much everyone else is, but this is the way I think of it that makes the most sense in my head.

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onthecusp
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Re: Consideration

Postby onthecusp » Thu Oct 14, 2010 1:08 am

JazzOne wrote:
onthecusp wrote:
JazzOne wrote:


This is correct. But watch out for nominal consi-deration, which may not hold up under the "bargain" of the exchange.

Right. I almost ended my post with a caveat regarding reciprocal inducement, but I figured that would open up a whole other can of worms.


Reciprocal Inducement is probably the phrase that causes the least confusion. At the end of the day, what is consideration really? A promise for a promise, a thing for a thing, performance for performance, or any combination of the three. It doesn't necessarily have to be a detriment. The most confusing thing about consideration IMO is that the courts have ruled that they have no right to criticize what one deems fair consideration, yet there is the nominal consideration bit. At the end of the day, "inducement" brings clarity.

"For what reason will I give you this thing"
"Because I will perform this, or serve that, or give you this."

I have to get something in return, and it can't be something you are already legally obligated to give me, and although it doesn't have to be of substantial value compared what I am giving, it can't be merely symbolic in nature. In other words, the court has to see where it has some meaning respective to the parties. A family air-loom, a promise to name a kid, promise to set up a memorial fund in donor's name, promise to forebear a legal right; where the dollar value is unclear, it has to be prevalent that intangible value exists.

I agree with most of your thoughts, but I challenge you to think of one example of valid consideration that is not a legal detriment (as I defined it above: promising to do something which you were not otherwise legally obligated to do).


I agree with the legal detriment bit, but I understand detriment to mean exactly what you said, something you wouldn't otherwise be obligated to do. I think people get confused by the word detriment, and in essence it is that detriment that makes contracts useful. Otherwise, we'd call them gifts and would have no legal remedies to enforce anything. I think people confuse detriment to mean something that hurts you, or disadvantages you in some way, but that's an incomplete analysis. The true detriment is the creation of a legal obligation you wouldn't otherwise be obligated to do, as you have stated. I think that's a perfect way to look at it.

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BarbellDreams
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Re: Consideration

Postby BarbellDreams » Thu Oct 14, 2010 9:20 am

This entire post is people trying to explain the difference between consideration and a conditional promise and a couple of people fighting it. I feel like it has been explained as best possible by some of the above posters and we're just beating a dead horse. The answer is generally "maybe". The "bargained for" scenario is important, but take a look at Pennsy Supply, Inc. v. American Ash Recycling Corp. of Pennsylvania where the promisee received a benefit but the promisee did not bargain as they had no idea that the promisor received a benefit from the transaction. Promisor argued this in court as a gift, but court ruled that although the promisee did not know of this benefit, it indeed existed and thus was bargained for to constitute consideration (although Pennsy never ACTUALLY bargained for something they didnt know about obviously). You can argue both sides all the time, Contracts is never going to be as clear as "I will give you $5 if you mow my lawn. Consideration?" Forced curves arent throwing these types of hypos at us anytime soon.

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JazzOne
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Re: Consideration

Postby JazzOne » Thu Oct 14, 2010 11:26 am

BarbellDreams wrote:This entire post is people trying to explain the difference between consideration and a conditional promise and a couple of people fighting it. I feel like it has been explained as best possible by some of the above posters and we're just beating a dead horse. The answer is generally "maybe". The "bargained for" scenario is important, but take a look at Pennsy Supply, Inc. v. American Ash Recycling Corp. of Pennsylvania where the promisee received a benefit but the promisee did not bargain as they had no idea that the promisor received a benefit from the transaction. Promisor argued this in court as a gift, but court ruled that although the promisee did not know of this benefit, it indeed existed and thus was bargained for to constitute consideration (although Pennsy never ACTUALLY bargained for something they didnt know about obviously). You can argue both sides all the time, Contracts is never going to be as clear as "I will give you $5 if you mow my lawn. Consideration?" Forced curves arent throwing these types of hypos at us anytime soon.

That's probably true. The real analysis on my contracts exam had to do with remedies, not consideration.

ubik23
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Re: Consideration

Postby ubik23 » Fri Oct 29, 2010 2:24 pm

consideration really just means money, personal services, or giving up legal rights. Example: you are CEO. you have an employment contract. You give your services as consideration in the contract. The company gives you cash and stock as consideration for your services.

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Grizz
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Re: Consideration

Postby Grizz » Fri Oct 29, 2010 4:34 pm

ubik23 wrote:consideration really just means money, personal services, or giving up legal rights. Example: you are CEO. you have an employment contract. You give your services as consideration in the contract. The company gives you cash and stock as consideration for your services.


Sorta not really.

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kalvano
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Re: Consideration

Postby kalvano » Fri Oct 29, 2010 11:02 pm

ubik23 wrote:consideration really just means money, personal services, or giving up legal rights.


LOL no.

09042014
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Re: Consideration

Postby 09042014 » Fri Oct 29, 2010 11:44 pm

1) Bargain Theory of Consideration
a. A contract is enforceable promise
b. To be enforceable a promise must be supported by a consideration
c. A promise is supported by a consideration if it is bargained for
d. A 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.

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vanwinkle
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Re: Consideration

Postby vanwinkle » Fri Oct 29, 2010 11:44 pm

Desert Fox wrote:1) Bargain Theory of Consideration
a. A contract is enforceable promise
b. To be enforceable a promise must be supported by a consideration
c. A promise is supported by a consideration if it is bargained for
d. A 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.

Holy shit, DF is becoming a law student.

09042014
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Re: Consideration

Postby 09042014 » Fri Oct 29, 2010 11:46 pm

vanwinkle wrote:
Desert Fox wrote:1) Bargain Theory of Consideration
a. A contract is enforceable promise
b. To be enforceable a promise must be supported by a consideration
c. A promise is supported by a consideration if it is bargained for
d. A 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.

Holy shit, DF is becoming a law student.


I know I just spent my friday night doing a K's midterm. WTF happened to me.

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kalvano
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Re: Consideration

Postby kalvano » Fri Oct 29, 2010 11:50 pm

Desert Fox wrote:1) Bargain Theory of Consideration
a. A contract is enforceable promise
b. To be enforceable a promise must be supported by a consideration
c. A promise is supported by a consideration if it is bargained for
d. A 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.



Don't forget benefit / detriment.

09042014
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Re: Consideration

Postby 09042014 » Fri Oct 29, 2010 11:54 pm

kalvano wrote:
Desert Fox wrote:1) Bargain Theory of Consideration
a. A contract is enforceable promise
b. To be enforceable a promise must be supported by a consideration
c. A promise is supported by a consideration if it is bargained for
d. A 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.



Don't forget benefit / detriment.


Different theory of consideration I think.

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kalvano
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Re: Consideration

Postby kalvano » Fri Oct 29, 2010 11:58 pm

Desert Fox wrote:
kalvano wrote:
Desert Fox wrote:1) Bargain Theory of Consideration
a. A contract is enforceable promise
b. To be enforceable a promise must be supported by a consideration
c. A promise is supported by a consideration if it is bargained for
d. A 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.



Don't forget benefit / detriment.


Different theory of consideration I think.



It's the older test.

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savagedm
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Re: Consideration

Postby savagedm » Sun Oct 31, 2010 8:03 pm

kalvano wrote:
Desert Fox wrote:
kalvano wrote:
Desert Fox wrote:1) Bargain Theory of Consideration
a. A contract is enforceable promise
b. To be enforceable a promise must be supported by a consideration
c. A promise is supported by a consideration if it is bargained for
d. A 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.



Don't forget benefit / detriment.


Different theory of consideration I think.



It's the older test.


overturned/updated precedent is no longer effective precedent. use the newer standard if available. it only helps if you would require the older standard in making a persuasive argument for one of the parties.

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kalvano
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Re: Consideration

Postby kalvano » Sun Oct 31, 2010 10:56 pm

savagedm wrote:overturned/updated precedent is no longer effective precedent. use the newer standard if available. it only helps if you would require the older standard in making a persuasive argument for one of the parties.



We've spent a decent bit of time on it, so it would seem it still has some value. At least to my professor.

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Grizz
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Re: Consideration

Postby Grizz » Sun Oct 31, 2010 10:58 pm

kalvano wrote:
savagedm wrote:overturned/updated precedent is no longer effective precedent. use the newer standard if available. it only helps if you would require the older standard in making a persuasive argument for one of the parties.



We've spent a decent bit of time on it, so it would seem it still has some value. At least to my professor.


Ultimately that's what matters. We just glossed over it.

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Stanford4Me
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Re: Consideration

Postby Stanford4Me » Sun Oct 31, 2010 11:02 pm

kalvano wrote:
savagedm wrote:overturned/updated precedent is no longer effective precedent. use the newer standard if available. it only helps if you would require the older standard in making a persuasive argument for one of the parties.



We've spent a decent bit of time on it, so it would seem it still has some value. At least to my professor.

Yeah, my professor encourages us to do both the benefit/detriment and bargained for exchange test.




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