Consideration Q

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SwampRat88
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Consideration Q

Postby SwampRat88 » Wed Nov 30, 2011 12:08 pm

On deathbed, A promises his child B that he will provide 100K for her medical school tuition, if promises to go. B promises right before A's imminent death.

Is there valid consideration? Would it make any difference if it wasn't his child, but rather a friend?
Last edited by SwampRat88 on Wed Nov 30, 2011 12:30 pm, edited 1 time in total.

target
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Re: Consideration Q

Postby target » Wed Nov 30, 2011 12:28 pm

SwampRat88 wrote:On deathbed, A promises his child B that he will provide 100K for her medical school tuition, if she goes. B accepts before A's imminent death.

Is there valid consideration? Would it make any difference if it wasn't his child, but rather a friend?


There may be a valid consideration, but may not be a valid acceptance if A's offer require performance as an acceptance.

SwampRat88
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Re: Consideration Q

Postby SwampRat88 » Wed Nov 30, 2011 12:30 pm

target wrote:
SwampRat88 wrote:On deathbed, A promises his child B that he will provide 100K for her medical school tuition, if she goes. B accepts before A's imminent death.

Is there valid consideration? Would it make any difference if it wasn't his child, but rather a friend?


There may be a valid consideration, but may not be a valid acceptance if A's offer require performance as an acceptance.


I worded it poorly, I meant to say "if she promises to go."

Anyway, since it is between family members, is it presumed to be gratuitous ?

kaiser
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Re: Consideration Q

Postby kaiser » Wed Nov 30, 2011 12:48 pm

I'm sure that it would be seen as a familial promise and not actually enforceable as a contract

SwampRat88
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Re: Consideration Q

Postby SwampRat88 » Wed Nov 30, 2011 12:54 pm

kaiser wrote:I'm sure that it would be seen as a familial promise and not actually enforceable as a contract


And what if the promise was made to a friend? Would it be a bargained-for exchange resulting in a legal detriment, even though he was about to die?

target
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Re: Consideration Q

Postby target » Wed Nov 30, 2011 1:01 pm

kaiser wrote:I'm sure that it would be seen as a familial promise and not actually enforceable as a contract


I am not sure if this case is absolute, and this may just be how my prof. taught. Two elements to look at are the extent of services and the relationship. The relationship does call for a gratuitous promise. However, this case does induce the kid to go to med school, and may impliedly induce him to finish med school, which is not a typical favor that one may ask another to do for him/herself.

You can argue that offer is gratuitous. It just doesn't seem to me it is absolute one way or another.

lawnerd1
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Re: Consideration Q

Postby lawnerd1 » Fri Dec 02, 2011 1:37 am

target wrote:
kaiser wrote:I'm sure that it would be seen as a familial promise and not actually enforceable as a contract


I am not sure if this case is absolute, and this may just be how my prof. taught. Two elements to look at are the extent of services and the relationship. The relationship does call for a gratuitous promise. However, this case does induce the kid to go to med school, and may impliedly induce him to finish med school, which is not a typical favor that one may ask another to do for him/herself.

You can argue that offer is gratuitous. It just doesn't seem to me it is absolute one way or another.


A got what he was seeking: B's promise to attend medical school. In exchange for B's promise, A promises to pay $100,000.
That is valid consideration that was bargained for. In this case it's irrelevant that the parties are related because the consideration isn't nominal and was bargained for.

Like someone earlier said, however, acceptance may not have been valid if A has to complete med school.

Edit: I'm leaving my original post intact but appending this: I don't think the contract would be enforceable until after A complete's med school. See Hamer v. Sidway.

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johansantana21
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Re: Consideration Q

Postby johansantana21 » Fri Dec 02, 2011 5:38 am

lawnerd1 wrote:
target wrote:
kaiser wrote:I'm sure that it would be seen as a familial promise and not actually enforceable as a contract


I am not sure if this case is absolute, and this may just be how my prof. taught. Two elements to look at are the extent of services and the relationship. The relationship does call for a gratuitous promise. However, this case does induce the kid to go to med school, and may impliedly induce him to finish med school, which is not a typical favor that one may ask another to do for him/herself.

You can argue that offer is gratuitous. It just doesn't seem to me it is absolute one way or another.


A got what he was seeking: B's promise to attend medical school. In exchange for B's promise, A promises to pay $100,000.
That is valid consideration that was bargained for. In this case it's irrelevant that the parties are related because the consideration isn't nominal and was bargained for.

Like someone earlier said, however, acceptance may not have been valid if A has to complete med school.

Edit: I'm leaving my original post intact but appending this: I don't think the contract would be enforceable until after A complete's med school. See Hamer v. Sidway.


Hamer was a unilateral contract.

OP amended his hypo to make it either:
1. Unilateral contract with consideration on both sides. B's consideration is the promise for $, A's consideration is B's promise to go to school.

2. No contract because no assent/intent to contract. You want to bring up familiar relationship and say that when there are family arrangements, courts have a presumption that they are family arrangements without legal consequences.

Edit: I'm a 1L. 99% of what I wrote might be wrong.

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DocHawkeye
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Re: Consideration Q

Postby DocHawkeye » Fri Dec 02, 2011 11:58 am

I would say that there is consideration - a very typical bilateral contract with a promise to perform made on both sides. Hamer doesn't seem to apply because in that case the contract was unilateral. See Fiege v. Boehm. There are other problems with this being a valid contract, however. Several have pointed out the familial relationship between the parties. See Payette v. Payette. The other problem that I see is that this seems to fall within one or more provisions of the Statute of Frauds - it is either a contract not to be performed within the promisor's lifetime or a contract not to be completed within one year. In either of these cases, a writing would be required for the contract to be enforceable.

jkay
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Re: Consideration Q

Postby jkay » Sat Dec 03, 2011 6:23 pm

It doesn't matter: it's a gift causa mortis and therefore irrevocable if the donor actually dies immediately after offering the gift.

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DocHawkeye
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Re: Consideration Q

Postby DocHawkeye » Sat Dec 03, 2011 6:35 pm

jkay wrote:It doesn't matter: it's a gift causa mortis and therefore irrevocable if the donor actually dies immediately after offering the gift.


The gift is only complete with the actual transfer of the property. Constructive transfer is insufficient for gifts causa mortis. See Foster v. Riess.

jkay
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Re: Consideration Q

Postby jkay » Sun Dec 04, 2011 1:12 am

That's not even the hard and fast rule in NJ, let alone in other jurisdictions. Five minutes brought me to Scherer v. Hyland, allowing constructive transfer in NJ post-Foster.

Renzo
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Re: Consideration Q

Postby Renzo » Wed Dec 07, 2011 6:41 pm

There's no contract, and no deathbed gift under the common law rule (because there's no physical delivery), just a gratuitous promise.

When will we know if she has upheld her side of the "bargain"? She can always say that she is going to go to school someday later, and thus isn't in breach, so basically she has an infinite option as to whether she wants to go to school or not.




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