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.   

Consideration

One of the most difficult concepts for law students to grasp in contracts is consideration. There is not really a working definition for the concept. It can best be described as something that has been bargained for. It is a benefit that one party to a contract receives, or some sort of sacrifice or burden on the part of the other party. A contract cannot exist unless both sides give consideration.

The following is a problem from my contracts casebook. I loved this hypothetical. I have my own idea of what the correct answer is, but I will leave that explanation for tomorrow. For now, I would just like to throw it out there and give everyone the chance to think about it. I would also certainly welcome comments if anyone is interested in doing so. 

Mark Queensberry was the current holder of a promissory note signed by Sebastian Melmouth. When the note matured, Queensbury came to Melmouth's house to collect. Mrs. Melmouth met him at the door and handed him a promissory note she had signed for the same amount; it was payable exactly one year later. She said to Queensberry that if he would promise her to forbear collecting on her husband's note for one year, at the end of that period she would pay her note if her husband was unable to pay his. Queensberry just grunted and walked away with her note. He did forbear collection activities for one year. Now Queensberry is trying to collect from Mrs. Melmouth. She is arguing that she had asked for a promise and did not get it, and that there is, therefore, no consideration. Is she correct? 

The complexity of the law [John]

I am definitely starting to realize the complexity of the law. At one moment, you think that you have a pretty good grasp on issues such as consideration in contract cases and then you are thrown for a loop. Exceptions such as past consideration, adequacy and gifts definitely make the law confusing. There is no doubt in my mind now that no average Joe can represent themselves in a court of law without a lawyer...its just too difficult.

It gets even worst in civil procedure where there are a multitude of exceptions to subject matter jurisdiction. No wonder there are so many appeals. It just seems so difficult for judges to make the right decisions based on the matter of law 100% of the time with all these exceptions etc. But then again, that is why we have the appeals process. It is their job to help clarify the law and its procedures.

Thankfully it is the weekend, and I can make a serious effort on my closed memorandum that is due on Tuesday. But for now, I am going to sit, relax and rejoice that Sarah Palin is my VP candidate!!!!

Its all Greek to me! [John]

As the rumors have stated, Obama's speech on Thursday will have an ancient Greece backdrop (see above). After learning this, I opened my Civ Pro book began my homework by briefing a case with a Greek Plaintiff. The case was in regards to diversity jurisdiction and whether a law suit between citizen from a foreign state and a citizen of a foreign state with permanent U.S. residency can be enough to move the case into the Federal System. Anyway, what is even funnier is that I opened my Contracts book and my second brief was a case between two Greeks.

I am Greek, as most of you know, so these kinds of things are funny to me. After laughing for a few minutes about this coincidence, I asked myself are Greek's litigious? Unfortunately, I haven't been able to find statistics based on ethnicity but I think it would be reasonably to say that they are not more litigious than anyone else--this was just some crazy coincidence.

Anyway, sorry about the random tangent. However, I did want to share with you something trivial I learned today. In Contracts class, we discussed "consideration." Without going into the benefit/detriment test or the Bargained-for Exchange test, I did want to give you some parental advice.

Parental Advice:
A contract does not have sufficient consideration if the right that was suspended for a promise is not a legal right. Therefore, if your child is involved in illegal acts such as drugs, then technically if you promise them $1 million if they don't use drugs until they are 21, that promise is not a legally binding contract; this is because they didn't have a legal right to do drugs in the first place. So basically, your children will hate you for the rest of their life, but legally they will never be able to collect on your promise.