Fried Contracts

Part I: Principles of Contractual Obligation

The Promise Principle and its Rivals A. Grounds for Enforcing Promises

1. FORMALITY

Creation of a contract (§17): The formation of a contract requires a bargain in which there is a manifestation of mutual assent (offer and acceptance) to the exchange and consideration. a. When charitable promises are made without consideration or reliance there must be formality (evidence that the parties intended to be legally bound). (Deleo) i. Oral vs. Written ii. On death bed vs. more lucid with witnesses

2. BARGAINa. Consideration Elements (§71) i. To constitute consideration, a performance or a return promise must be bargained for. (§ 71(1))  Bargained for: sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise. (§71(2))(Whitten v. Greeley-Shaw: mistress; husband did not bargain)  Performance may consist of: (§71(3)) a) an act other than a promise; b) a forbearance (Hamer v. Sidway: no drinking deal w/ uncle) (Duncan v. Black: empty cotton suit); c) the creation, modification, or destruction of a legal relation ii. Warnings for a lack of bargaining (from Whitten):  The party proposing the contract also receives material benefit  One party is vulnerable and the other takes advantage of a duress-like situation b. Consideration as Motive (§ 81) i. The fact that what is bargained for does not of itself induce the making of a promise does not prevent it from being consideration for the promise.  A offers B a book for a promise of $10. Still valid consideration even if A intends to give B $10 whether or not he gets the book. ii. The fact that a promise does not of itself induce a performance or return promise does not prevent the performance or return promise from being consideration for the promise. (Earle v. Angell:$500 to attend funeral)  A offers B a book for a promise of $10. Still valid consideration even if B intends to give A the book whether or not he gets $10....