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Consideration from Blacks 8th Ed. 2004

Consideration from Blacks 8th Ed. 2004

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Excerpts from Black's regarding consideration.

Excerpts from Black's regarding consideration.

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Published by: Lisa Stinocher OHanlon on Dec 08, 2012
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Black's Law Dictionary (8th ed. 2004) , Page 923
consideration,n.1. Something (such as an act, a forbearance, or a return promise) bargainedfor and received by a promisor from a promisee; that which motivates a person to do something,esp. to engage in a legal act. • Consideration, or a substitute such as promissory estoppel, isnecessary for an agreement to be enforceable. See Restatement (Second) of Contracts § 81 (1979).[Cases: Contracts 49. C.J.S. Contracts § 87.]“A ‘consideration’ has been explained to be ‘any act of the plaintiff from which the defendant,or a stranger, derives a benefit or advantage, or any labour, detriment, or inconvenience sustained by the plaintiff, however small the detriment or inconvenience may be, if such act is performed, or inconvenience suffered by the plaintiff with the assent, express or implied, of the defendant, or, inthe language of pleading, at the special instance and request of the defendant.’ ” Thomas E.Holland, The Elements of Jurisprudence 286 (13th ed. 1924).“A consideration in its widest sense is the reason, motive, or inducement, by which a man ismoved to bind himself by an agreement. It is not for nothing that he consents to impose anobligation upon himself, or to abandon or transfer a right. It is in consideration of such and such afact that he agrees to bear new burdens or to forgo the benefits which the law already allows him.”John Salmond, Jurisprudence 359 (Glanville L. Williams ed., 10th ed. 1947).“The word ‘consideration’ has been around for a long time, so it is tempting to think we havehad a theory of consideration for a long time. In fact until the nineteenth century the word never acquired any particular meaning or stood for any theory.” Grant Gilmore, The Death of Contract18 (1974).“In the late fifteenth and early sixteenth centuries the word ‘consideration’ was very familiar to lawyers, and although it had not yet acquired a special legal meaning (and indeed was not to doso during the period under discussion) it had already begun to develop legal associations. Mostcommonly it was used in statutes.... In the statutes of Henry VI it became quite common for thedraftsman, after he had rehearsed the circumstances to introduce the enacting part with a clause inthe following (or similar) form: ‘The King, considering the premisses, of the Assent and Requestaforesaid, hath ordained and established ....’ In the course of time the matters which wereconsidered, and to which consideration was given, came themselves to be called ‘theconsiderations.’ [By the late 15th century] the considerations were the matters considered; theywere the factors which Parliament or the King was supposed to have had in mind in legislating,and which moved or motivated the enactment. Loosely the word could be treated as synonymouswith ‘cause,’ and both in statutes and elsewhere causes and considerations were often mentionedin the same breath. But ‘cause’ does not mean exactly the same thing as ‘consideration’; it lacksthe suggestion of what was in the mind, what was considered, what motivated.” A.W.B. Simpson,Legal Theory and Legal History 332 (1987).adequate consideration.Consideration that is fair and reasonable under the circumstances of the agreement. Cf. sufficient consideration. [Cases: Contracts 53–54. C.J.S. Contracts §§ 87,131–132.]“It is helpful to observe precision in use of vocabulary when analyzing consideration issues.Distinguish carefully between ‘adequate’ consideration and ‘sufficient’ consideration. ‘Adequacy’refers to whether there was a fair bargain involving an exchange of equal values. ‘Sufficiencyrefers to whether the consideration is legally suffi-cient to enforce a promise, and this requiresonly that there be some legal detriment incurred as a bargained exchange for the other party's promise.” Claude Rohwer & Gordon D. Schaber, Contracts in a Nutshell 83 (4th ed. 1997).
“Although courts have not lost the habit of speaking of an ‘adequate,’ a ‘sufficient,’ or a‘valuable’ consideration, the bargain test as epitomized in the Restatement imposes no suchadditional requirement.” E. Allan Farnsworth, Contracts § 2.11, at 69–70 (3d ed. 1999).and other good and valuable consideration.See other consideration.concurrent consideration.Consideration arising at the same time as other consideration, or where the promises are simultaneous. [Cases: Contracts 56. C.J.S. Contracts §§ 105–106.]continuing consideration.An act or performance extending over time.due consideration.See sufficient consideration.executed consideration.A consideration that has been wholly given; past consideration asopposed to present or future consideration. [Cases: Contracts 78. C.J.S. Contracts § 92.]executory consideration (eg-zek-y<<schwa>>-tor-ee). A consideration that is to be given onlyafter formation of the contract; present or future consideration as opposed to past consideration.express consideration.Consideration that is specifically stated in an instrument.fair consideration. 1. Consideration that is roughly equal in value to the thing beingexchanged; consideration given for property or for an obligation in either of the followingcircumstances: (1) when given in good faith as an exchange for the property or obligation, or (2)when the property or obligation is received in good faith to secure a present advance or prior debtin an amount not disproportionately small as compared with the value of the property or obligationobtained. — Also termed fair and valuable consideration. 2. Consideration that is honest,reasonable, and free from suspicion, but not strictly adequate or full.future consideration. 1. Consideration to be given in the future; esp., consideration that is dueafter the other party's performance. 2. Consideration that is a series of performances, some of which will occur after the other party's performance. 3. Consideration the specifics of which havenot been agreed on between the parties. Cf. past consideration.good and valuable consideration.See valuable consideration.good consideration. 1. Consideration based on natural love or affection or on moral duty<good consideration, being based purely on affection, does not amount to valuable consideration>.• Such consideration is usu. not valid for the enforcement of a contract. — Also termedmeritorious consideration; moral consideration. [Cases: Contracts 76–77. C.J.S. Contracts §§102–103, 127, 130.]“A good consideration is that of blood, or the natural love and affection which a person has tohis children, or any of his relatives.... A good consideration is not of itself sufficient to support a promise, any more than the moral obligation which arises from a man's passing his word; neither will the two together make a binding contract; thus a promise by a father to make a gift to his childwill not be enforced against him. The consideration of natural love and affection is indeed goodfor so little in law, that it is not easy to see why it should be called a good consider-ation ....”Joshua Williams, Principles of the Law of Personal Property 95–96 (11th ed. 1881).“Stated simply, good or meritorious consideration is nothing more than motive or moralobligation.” 3 Richard A. Lord, Williston on Contracts § 7:16, at 325–26 (4th ed. 1992).2. Loosely, valuable consideration; consideration that is adequate to support the bargained-for exchange between the parties <his agreement to pay the offering price was good consideration for the sale>. [Cases: Contracts 49. C.J.S. Contracts § 87.]
gratuitous consideration (gr<<schwa>>-t[y]oo-i-t<<schwa>>s). Consideration that, not beingfounded on any detriment to the party who gives it, will not support a contract; a performance for which a party was already obligated.grossly inadequate consideration.Consideration whose value is so much less than the fair value of the object acquired that it may not support finding that the transaction is a valid exchange.• Depending on the surrounding circumstances, the transaction may actually be fraud, a gift, or something else other than a sale and purchase.illegal consideration.Consideration that is contrary to the law or public policy, or prejudicialto the public interest. • Such consideration does not support a contract. [Cases: Contracts 103.C.J.S. Contracts §§ 195–200, 213–214.]immoral consideration.A consideration that so offends societal norms as to be invalid. • Acontract supported by immoral consideration is usu. voidable or unenforceable. — Also termedturpis causa. [Cases: Contracts 112. C.J.S. Contracts §§ 275–276.]implied consideration.Consideration that is inferred by law from the parties' actions.impossible consideration.Consideration stemming from a promise or performance that cannot be fulfilled. [Cases: Contracts 80. C.J.S. Contracts § 106.]inadequate consideration.Consideration that is not fair or reasonable under the circumstancesof the agreement. Cf. adequate consideration. [Cases: Contracts 53–54. C.J.S. Contracts §§ 87,131–132.]invented consideration. Fictional consideration created by a court to prevent the invalidationof a contract that lacks consideration.
Black's Law Dictionary (8th ed. 2004) , Page 925
legally sufficient consideration.See sufficient consideration.meritorious consideration.See good consideration.moral consideration.See good consideration.nominal consideration.Consideration that is so insignificant as to bear no relationship to thevalue of what is being exchanged (e.g., $10 for a piece of real estate). • Such consideration can bevalid, since courts do not ordinarily examine the adequacy of consideration (although they dooften inquire into such issues as fraud and duress). — Also termed peppercorn. [Cases: Contracts53–54. C.J.S. Contracts §§ 87, 131–132.]“Offers made in consideration of one dollar paid or promised are often irrevocable .... Theirrevocability of an offer may be worth much or little to the offeree, and the courts do notordinarily inquire into the adequacy of the consideration bargained for. Hence a comparativelysmall payment may furnish consideration for the irrevoca-bility of an offer proposing a transactioninvolving much larger sums. But gross disproportion between the pay-ment and the value of theoption commonly indicates that the payment was not in fact bargained for but was a mereformality or pretense. In such a case there is no consideration .... Nevertheless, such a nominalconsideration is regularly held sufficient to support a short-time option proposing an exchange onfair terms. The fact that the option is an appropriate preliminary step in the conclusion of asocially useful transaction provides a sufficient substantive basis for enforcement, and a signedwriting taking a form appropriate to a bargain satisfies the desiderata of form. In the absence of statute, however, the bargaining form is essential: a payment of one dollar by each party to theother is so obviously not a bargaining transaction that it does not provide even the form of an

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