explanation of restatement 75's definition of consideration

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dudnaito
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explanation of restatement 75's definition of consideration

Postby dudnaito » Sat Oct 30, 2010 3:31 pm

I guess I'm still having a difficult time understanding the difference between the promise and the performance of that promise. The courts determine that the promise is at least as important as the performance, but i don't understand how one can have a bargain if the performance was not intended to be performed, but the promise still somehow retains its value.

For instance, in Farnsworth's Contracts, he comments about the case of Hamer v. Sidway (promise to nephew to refrain from cursing, drinking, smoking, gambling, etc...) saying:

"The result would have been the same if the uncle had bargained for and received promise to forbear rather than his actual forbearance. If a performance would itself be consideration, a promise to render that performance can also be consideration. But it must be the promise rather than the performance that is bargained for. "

So, promise>performance of the promise?

If like Farnsworth said, the nephew did not actually restrain from those acts, how could bargaining be achieved, for clearly there is no value in the promise anymore?

I'm getting hella confused. I didn't start thinking about consideration super hard until now.

dougroberts
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Re: explanation of restatement 75's definition of consideration

Postby dougroberts » Sat Oct 30, 2010 3:39 pm

Consideration: bargain (exchange) AND legal value
Legal value consists of a legal benefit to the promisor OR a legal detriment to the promisee.

The Hamer court was concerned with the legal detriment, which was the nephew's refrainment from doing legal activities (smoking and such was legal in the 1800s). Although nephew benefited from this forbearance, he gave up a legal right. Court says we do not think legal benefit to the promisor is not necessary, though in this case the uncle got the benefit of knowing his nephew was doing good things.

Legal benefit: gaining something that normally not legally entitled to.
Legal Detriment: losing something that normally entitled to lose.

We don’t really care about the quality of the legal benefit or the legal detriment, just simple Yes/No.
Ex) legal detriment: nephew lost something he was normally entitled to (the right to smoke etc). So Yes!

Also, Court says that legal benefit not important as long as legal detriment exists. [only need one or the other really].

dakatz
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Re: explanation of restatement 75's definition of consideration

Postby dakatz » Sat Oct 30, 2010 3:41 pm

OP, remember that the Hamer case occurred before the "bargained-for" theory of consideration was adopted. The above explanation of Hamer is correct, but I still have no clue what OP is even asking.

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dudnaito
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Re: explanation of restatement 75's definition of consideration

Postby dudnaito » Sat Oct 30, 2010 3:48 pm

i understand that the takeaway of this particular case is that forbearance of a legal right is sufficient to qualify for consideration, etc... but i was just reading Farnsworth's Contracts, and he basically states that the promise is the point of the bargain even if the other party has no intention to actually go through with the promise which confuses me, cause what value is there in a promise if the substance of the promise is never meant to be performed?

Just to try to clarify this hodgepodge of b.s. once more, i'm not so much asking about the legal detriment/benefit side to this case, but rather the distinction between promise and performance of the promise.

Farnsworth, the restatements, etc.. basically seems to be saying that the promise is at least as important if not more important than the performance of the promise.

I dunno what the hell i'm talking about anymore, i'm definitely just over-analyzing something that's not even gonna be tested anyway.

thrillerjesus
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Re: explanation of restatement 75's definition of consideration

Postby thrillerjesus » Sat Oct 30, 2010 3:56 pm

dudnaito wrote:i understand that the takeaway of this particular case is that forbearance of a legal right is sufficient to qualify for consideration, etc... but i was just reading Farnsworth's Contracts, and he basically states that the promise is the point of the bargain even if the other party has no intention to actually go through with the promise which confuses me, cause what value is there in a promise if the substance of the promise is never meant to be performed?


His point might be that when you make a promise to perform, your own subjective intent to not keep your promise is irrelevant to the question of whether or not you have made a contract, unless the person to whom you are promising is aware that you have no intention of performing.

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dudnaito
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Re: explanation of restatement 75's definition of consideration

Postby dudnaito » Sat Oct 30, 2010 7:16 pm

yeah, i get what everyone's saying, and i know the law school exam worthy answers and facts too. It just seems like such b.s. if you really think about it. what am i doing, who cares? it's all about that A anyway.

thanks everyone for entertaining this question; helped me sort through my thoughts (as in, throw it out).

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dudnaito
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Re: explanation of restatement 75's definition of consideration

Postby dudnaito » Sat Oct 30, 2010 7:43 pm

gotcha, i know manifested intent via objective test for obvious reason is what's important, but farnsworth's discussion seemed to place the reader in an omniscient state where we do know their true intentions, and he still dismissed it.

my contracts professor did say he was a terrible writer, so maybe that's just it, either that or i'm a terrible reader. (latter more likely)

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UnitarySpace
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Re: explanation of restatement 75's definition of consideration

Postby UnitarySpace » Sat Oct 30, 2010 8:06 pm

"The result would have been the same if the uncle had bargained for and received promise to forbear rather than his actual forbearance. If a performance would itself be consideration, a promise to render that performance can also be consideration. But it must be the promise rather than the performance that is bargained for. "

Farnsworth isn't saying that promise > performance. He's just saying that if the nephew had promised to forbear, and if he then performed, it would be the same result, just that under section 71 it would then be the promise that was bargained for.

I think maybe you're getting this confused with Farnsworth's earlier discussion of why we enforce purely executory promises.

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mikeytwoshoes
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Re: explanation of restatement 75's definition of consideration

Postby mikeytwoshoes » Sat Oct 30, 2010 9:36 pm

betasteve wrote:Hilbert Space > Unitary Space.

All I know is that every step on the Brooklyn Bridge accepted the offer, and therefore, created a brand new option contract.

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UnitarySpace
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Re: explanation of restatement 75's definition of consideration

Postby UnitarySpace » Sat Oct 30, 2010 9:39 pm

betasteve wrote:Hilbert Space > Unitary Space.


almost anything > Unitary Space. The term has fallen out of standard use, but it sounds so cool.




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