Pre-existing legal duty please help

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trayball23
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Pre-existing legal duty please help

Postby trayball23 » Tue Oct 18, 2011 11:07 pm

Bob owns an apartment with a great view of the park. In front of his apartment is a house. The house is not blocking his view but if it is built any higher it will block his view. Bob makes an offer to the guy who owns to house to pay him 25 k if he never builds his house higher. The owner of the house accepts. However, the house owner knows that the city ordinance will not allow him to build his house any taller even if he wanted to. Due to this is there consideration for the contract.

2. In a similar fashion can you make a contract with a 20 year old not to drink?

I am interested in the principle of preexisting legal duty rule and any cases to show it.

I think there is no consideration others feel that peace of mind by the owner of the apartment and the fact that the law could change makes there consideration.

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YourCaptain
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Re: Pre-existing legal duty please help

Postby YourCaptain » Tue Oct 18, 2011 11:10 pm

trayball23 wrote:Bob owns an apartment with a great view of the park. In front of his apartment is a house. The house is not blocking his view but if it is built any higher it will block his view. Bob makes an offer to the guy who owns to house to pay him 25 k if he never builds his house higher. The owner of the house accepts. However, the house owner knows that the city ordinance will not allow him to build his house any taller even if he wanted to. Due to this is there consideration for the contract.

2. In a similar fashion can you make a contract with a 20 year old not to drink?

I am interested in the principle of preexisting legal duty rule and any cases to show it.

I think there is no consideration others feel that peace of mind by the owner of the apartment and the fact that the law could change makes there consideration.


I don't know why there wouldn't be consideration.

Haven't you ever had neighbors who violated city ordinances in modifications to their house? Almost universally the city (if it even bothers after repeated notification) will fine them. An injunction against continued construction might be possible, but I definitely had neighbors who brought in "night crews" to do construction work in the middle of the night to get around it.

As to the 20-year old - He can't legally drink, but he still might.


If there's reason to believe that they'd violate the law ("pre-existing legal duty?" it's a law friend) and you can contract with them to incentivize them from not doing so, then sure, why not?

Public policy arguments might say this creates bad incentives, but that's something you argue on a test.

trayball23
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Re: Pre-existing legal duty please help

Postby trayball23 » Tue Oct 18, 2011 11:15 pm

then why does every text book use the marajuana case to show that you cant do this that you can not contract with someone not to smoke weed because they already have the duty not too.

bdubs
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Re: Pre-existing legal duty please help

Postby bdubs » Tue Oct 18, 2011 11:17 pm

trayball23 wrote:Bob owns an apartment with a great view of the park. In front of his apartment is a house. The house is not blocking his view but if it is built any higher it will block his view. Bob makes an offer to the guy who owns to house to pay him 25 k if he never builds his house higher. The owner of the house accepts. However, the house owner knows that the city ordinance will not allow him to build his house any taller even if he wanted to. Due to this is there consideration for the contract.

2. In a similar fashion can you make a contract with a 20 year old not to drink?

I am interested in the principle of preexisting legal duty rule and any cases to show it.

I think there is no consideration others feel that peace of mind by the owner of the apartment and the fact that the law could change makes there consideration.


Why are you asking TLS? Go to office hours or ask your TA. Your prof. might have a particular position on this issue that you're not getting by asking random strangers on the internet.

trayball23
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Re: Pre-existing legal duty please help

Postby trayball23 » Tue Oct 18, 2011 11:23 pm

I have done this I am just looking for actual case law either way

bdubs
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Re: Pre-existing legal duty please help

Postby bdubs » Tue Oct 18, 2011 11:26 pm

trayball23 wrote:I have done this I am just looking for actual case law either way


Try shepardizing a case in your casebook if you want more examples. Usually at least one case in the section is a seminal case in that area.

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piccolittle
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Re: Pre-existing legal duty please help

Postby piccolittle » Tue Oct 18, 2011 11:27 pm

Bob owns an apartment with a great view of the park. In front of his apartment is a house. The house is not blocking his view but if it is built any higher it will block his view. Bob makes an offer to the guy who owns to house to pay him 25 k if he never builds his house higher. The owner of the house accepts. However, the house owner knows that the city ordinance will not allow him to build his house any taller even if he wanted to. Due to this is there consideration for the contract.

2. In a similar fashion can you make a contract with a 20 year old not to drink?

I am interested in the principle of preexisting legal duty rule and any cases to show it.

I think there is no consideration others feel that peace of mind by the owner of the apartment and the fact that the law could change makes there consideration.


From my understanding, pre-existing duty applies only in modification cases when there is an existing duty to the promisee, as in a pre-existing contractual duty (see Watkins v Carrig etc). I would think the only issue in the house situation could be non-disclosure, but again I don't think there is a duty to reveal the knowledge of zoning restrictions unless the promisor made an affirmative statement (they are a matter of public record).

Just random thoughts. Go ask your TA.

highviolet
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Re: Pre-existing legal duty please help

Postby highviolet » Wed Oct 19, 2011 12:09 am

Restatement (Second) Contracts
§ 74. Settlement of Claims
(1) Forbearance to assert or the surrender of a claim or defense which proves to be invalid is not consideration unless
(a) the claim or defense is in fact doubtful because of uncertainty as to the facts or the law, or
(b) the forbearing or surrendering party believes that the claim or defense may be fairly determined to be valid.

So, the requirement is that there should be a reasonable OR honest belief that the claim is valid. In this case, it's reasonable to think that an owner of a house could build a second story and spoil a nice view if she wishes, so home owner's forbearance to build (regardless of the fact that she can't actually build) is good consideration for Bob's $25k promise.

Not sure how preexisting duty doctrine fits here. No one's bargaining for a legal duty that's already owed - unless you're arguing that the home owner already owes a legal duty to Bob to not build her house up. But, I'm not really sure if you can say that, since that wasn't bargained for between home owner and Bob; rather it's just a city statute curtailing home owner's liberties to build.

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jessuf
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Re: Pre-existing legal duty please help

Postby jessuf » Wed Oct 19, 2011 12:15 am

Pre-existing duty rule - If a party does or promises to do something that he is already legally obligated to do, or if he forbears or promises to forbear from doing something which he is not legally entitled to do (e.g. get wasted or not build up a building), he has not incurred a "detriment" for purposes of consideration. However, if one forbears or promises to forbear from doing something which is legally entitled to do (e.g. abstains from drinking alcohol or smoking tobacco when of the legal age), he has incurred a "detriment" for purposes of consideration and can seek relief under contract law (Hamer v. Sidway).

Sorry, I didn't read any cases that directly apply to #1 and #2. My class mostly focused on modification.

trayball23
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Re: Pre-existing legal duty please help

Postby trayball23 » Wed Oct 19, 2011 12:41 am

this is exactly my argument but I need so authority to back it up. My prof says that the law could change or they could break the law and this is enough consideration.

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jessuf
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Re: Pre-existing legal duty please help

Postby jessuf » Wed Oct 19, 2011 1:06 am

trayball23 wrote:this is exactly my argument but I need so authority to back it up. My prof says that the law could change or they could break the law and this is enough consideration.


Ok, try these two cases:
Collins v Godefroy (no consideration)
Glasbrook Bros v Glamorgan (consideration)

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I.P. Daly
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Re: Pre-existing legal duty please help

Postby I.P. Daly » Wed Oct 19, 2011 10:14 am

On a side note, I aspire to someday be the semi-creepy Hamer v. Sidway uncle that offers his nephew money to refrain from drinking, using tobacco, swearing, and playing cards and billiards.

bartleby
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Re: Pre-existing legal duty please help

Postby bartleby » Wed Oct 19, 2011 10:01 pm

I'm pretty sure E&E's has a good example for the underage drinking - but only in terms of consideration. Not sure if the contract is enforceable, but forbearing to illegally drink is still consideration if it is bargained for (because they might still want to illegally drink).

I would think weed would be the same - but I am not sure - I haven't seen it in my casebook.




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