1. Consideration and its equivalents Generally, a promise must be supported by consideration (or one of its equivalents) to be enforceable.

. This precludes gratuitous promises from being enforceable unless they are covered by PE or moral obligation. A. Consideration a. Definition: 71 of the Second Restatement I. To constitute consideration, a performance or a return promise must be bargainedfor. II. A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise. III. The performance may consist of i. an act other than a promise, or ii. a forbearance, or iii. the creation, modification, or destruction of a legal relation. IV. The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person. b. Three elements that must all exist in order for consideration to be valid I. Detriment to the promisee: i. This can be either a legal detriment to the promisee or legal benefit to the promisor. II. The detriment is bargained-for: i. The detriment is bargained-for if the detriment is the thing that induces the promise. III. And the promise is bargained-for: i. The promise is bargained-for if the promise is the thing that induces the detriment. The promisee must know of the promise and is induced to act because of the promise. ii. Note: Be careful about confusing promises that are bargained for with conditions on a gift. A. Ex. Kirksey - Sister-in-law widowed, moved in with brother. Her moving was considered a condition on a gift, not consideration. a. From Kirksey, a gratuitous promise is not enforceable even if the promisee reasonably relies on the promise and incurs a detriment to do so. b. Modern day courts could decide cases like Kirksey under promissory estoppel and find that the promise induced reliance and should be enforceable. c. Mutuality of obligation I. One party to a bilateral contract cannot be legally bound to perform unless the other party is also bound. Mutuality problems can be present if one of the component promises of the contract is illusory, a promise that imposes no real constraint on the and leaves the promisor with complete discretion about whether to perform. These issues occur in: i. Exclusive dealing contracts A. Wood v. Lucy, Lady Duff-Gordon B. A contract is still valid if one party's detriment is implied even if it is not an explicit element of the contract. (Good faith) a. The promise that the D market the designs of the P was implied through the business relationship. Neither the P nor the D would make any profits unless the D marketed the products of the P.

 Without the implied promise, the transaction would not have made sense. ii. Lack of mutuality = illusory contract A. De Los Santos v. Great Western Sugar Company a. One side (GWS) has discretion to end employment of the other no enforceable contract B. Weiner v. McGraw-Hill: a. At-will contract no obligation on either side HOWEVER, Weiner's actions constituted consideration (gave up raise, job, etc. as a result of negotiation w/ Mcgraw-Hill) C.