Top Law Schools

I know that CL contract modification requires (1) agreement of the parties, and (2) new consideration, however I recall reading somewhere that the parties agreeing to give up further performance under the K satisfies the need for new consideration.
I've gotten a couple MBE's wrong using this logic and am wondering if I'm off base. Any input?

LAWYER2 wrote:I know that CL contract modification requires (1) agreement of the parties, and (2) new consideration, however I recall reading somewhere that the parties agreeing to give up further performance under the K satisfies the need for new consideration.
I've gotten a couple MBE's wrong using this logic and am wondering if I'm off base. Any input?

If parties agree upon non-performance of the preexisting duties under the contract, a rescission (as opposed to modification) results, thereby discharging the duties of the parties. In this case, oral agreements are effective; the rescission need not be in writing even if the agreement is within the SOF. That said, it is entirely possible that I misread your post or misunderstood the situation you mentioned.

Aw, maybe I had rescission confused with modification, thx!

LAWYER2 wrote:Aw, maybe I had rescission confused with modification, thx!

Giving up a right to bring a suit where there's a good faith dispute between the parties re: their obligations under the contract is consideration also. In some states too, mine, a change in conditions that rises to the level of impracticability can suffice for consideration as well. I could be misunderstanding your question though.

I think what you described above though re: each agreeing to not require the other to perform is consideration, because the promises were bargained for. This I guess could be looked at as modification or mutual rescission.