Consideration Week!

RST - for this segment, we'll look to Chapter 4 of the RST2d of Contracts

[NB - The UCC is a text written after the RST quasi-codified the common law, so it will always already be in response to or aligned with the RST]

Consideration is the missing half of the matched set we've been waiting to meet since we first learned about mutual assent. This equation can get you through a significant amount of material.

Mutual Assent + Consideration = Enforceable bargains/agreements

When formation is successful, it is much more difficult to unwind a deal; hence, the intense policy focus on and numerous rules concerned with formation.

Recall how much time and extensive the coverage for Mutual Assent was? Consideration has its own set of rules, but in terms of quantity of material it pales next to mutual assent. And yet, confusion seems to be the norm when consideration comes online before or after mutual assent is tackled. It's possible that because we are trying to articulate an abstract concept in real-world terms, we have some confusion. The point of an idea like consideration is to quickly and reliably distinguish among promises that can and should be legally enforced and those that should not and are not enforced.

The reason for those legal drafting choices draws us into policy discussions that are best discovered as you work through applying the rules. Once you see the pattern begin to reveal itself in various rulings, you will begin to see what we, as a society. value as well as the ongoing tensions that are inherent in pluralistic democratic societies. For now, though we'll start with a basic formula and then try our hand at some classic consideration problems that illustrate the rules and how they work.

The 2 main theories we'll address are:

1) benefit/detriment theory (which includes action and forbearance); and

2) bargain theory (which includes promises as things of value and learning to look for the indicia of bargaining and inducing someone else to act or forbear from enjoying a right they could otherwise exercise.

Next, continue reading about consideration and then read the following cases, Hamer, Dougherty, and Shadwell. If you're not a little confused at the end of the reading - then you might want to work through some problems to make sure you have a working understanding of consideration.