Thursday, September 25, 2008

Consideration Continued

Okay, here is my analysis of the hypothetical. First, I will start with what I believe is the wrong answer. In law school, the professors always say that you should be prepared to argue both sides of an issue. So, here we go. 

A contract exists because both parties have given something and both parties have gotten something. The wife gave the note and received a year of non-collection from the collector. The collector did not collect for a year and in return received the wife's note. A contract exists when a promise is exchanged either for another promise or for a performance. Although the collector never accepted (did not promise), he still in fact performed. The wife received a valuable benefit from the collector, which constitutes consideration, and therefore a valid contract. Sounds good. Case closed.

I don't think so. Here is what I think the answer is. The offeror is the master of his offer. He dictates the terms of the offer and he sets the mode of acceptance. The wife clearly and unambiguously asked for a promise in return for her promise. She was bargaining for a promise, not a performance. What she wanted by giving the note, more than anything else, was to be secure in knowing that she had a year to pay off this debt, and that the collector would not come banging down her door at any moment. This security is what she was bargaining for, a type of security that could only be granted through a promise. She did not get it. She was forced to sit on her hands and knees praying all year that the collector didn't show up. On the other hand, what did the collector really give up or sacrifice? Sure, he did not go and collect for a year. But if he had wanted to, he would have been well within his legal rights to go and collect at any moment during that year because after all, he never actually accepted her offer. So, if he takes the note but makes no commitment to actually wait the year, as he did in this situation, he has in reality given up nothing at all. He can sit at home and think to himself if I so choose I can wait the entire year, but if over the course of this year I really need the money, I'll just go collect it. That is not consideration. He is not bound to anything. He can do whatever he wants. His position is advantageous beyond the point of being a valid bargained for agreement.   

Ultimately, did the wife receive something valuable? Did the collector give something of value? Absolutely, without any question. But it simply was not what was bargained for. The wife bargained for a promise and never got it. Consideration must be bargained for, and here the purported consideration has not, it is therefore invalid. You might say that his grunt may have carried with it some implication of consent to her offer. However, the collector is standing at her door. She simply asks him to just say the word "yes". All he has to do is move his lips and say "yes". Yet, he refuses to do so. It would have been the easiest thing in the world to do, but he choses not to do it. No reasonable person can look at his actions and say that they constituted an acceptance of her offer. There is absolutely no objective manifestation of intent to be bound to her terms. 

Anyway, that's just me, a 2nd month law student, playing judge. I welcome any counter-arguments or further comments on the subject.   

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