Consideration

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notmartha
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Consideration

Post by notmartha » Fri Dec 18, 2015 2:26 pm

A key element necessary to make an agreement a binding contract is consideration.

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Webster’s Dictionary of the English Language, 1828
CONSIDERATION, noun
7. In law, the reason which moves a contracting party to enter into an agreement; the material cause of a contract; the price or motive of a stipulation. In all contracts, each party gives something in exchange for what he receives.
A contract is an agreement, upon sufficient consideration. This consideration is express or implied; express, when the thing to be given or done is specified; implied, when no specific consideration is agreed upon, but justice requires it and the law implies it; as when a man labors for another, without stipulating for wages, the law infers that he shall receive a reasonable consideration A good consideration is that of blood, or natural love; a valuable consideration is such as money, marriage, etc. Hence a consideration is an equivalent or recompense; that which is given as of equal estimated value with that which is received.
Bouvier’s Law Dictionary, 1856
CONSIDERATION, contracts.

1. A compensation which is paid, or all inconvenience suffered by the, party from whom it proceeds. Or it is the reason which moves the contracting party to enter into the contract. Viner defines it to be a cause or occasion meritorious, requiring a mutual recompense in deed or in law. Abr. tit. Consideration,

2. A consideration of some sort or other, is so absolutely necessary to the forming a good contract, that a nudum pactum, or an agreement to do or to pay any thing on one side, without any compensation to the other, is totally void in law, and a man cannot be compelled to perform it. But contracts under seal are valid without a consideration; or, perhaps, more properly speaking, every bond imports in itself a sufficient consideration, though none be mentioned. Negotiable instruments, as bills of exchange and promissory notes, carry with them prima facie evidence of consideration.

3. The consideration must be some benefit to the party by whom the promise is made, or to a third person at his instance; or some detriment sustained at the instance of the party promising, by the party in whose favor the promise is made.

4. Considerations are good, as when they are for natural love and affection; or valuable, when some benefit arises to the party to whom they are made, or inconvenience to the party making them.

5. They are legal, which are sufficient to support the contract or illegal, which render it void. As to illegal considerations, see 1 Hov. Supp. to Ves. jr. 295; 2 Hov. Supp. to Ves. jr. 448; 2 Burr. 924 1 Bl. Rep. 204. If the, performance be utterly impossible, in fact or in law, the consideration is void.

6. A mere moral obligation to pay a debt or perform a duty, is a sufficient consideration for an express promise, although no legal liability existed at the time of making such promise. But it is to be observed, that in such cases there must have been a good or valuable consideration; for example, every one is under a moral obligation to relieve a person in distress, a promise to do so, however, is not binding in law. One is bound to pay a debt which he owes, although he has been released; a promise to pay such a debt is obligatory in law on the debtor, and can therefore be enforced by action.

7. In respect of time, a consideration is either,
- 1st. Executed, or Something done before the making of the obligor's promise. Yelv. 41, a. n. In general, an executed consideration is insufficient to support a contract; but an executed consideration on request; or by some previous duty, or if the debt be continuing at the time, or it is barred by some rule of law, or some provision of a statute, as the act of limitation, it is sufficient to maintain an action.
- 2d. Executory, or something to be done after such promise.
- 3d. Concurrent, as in the case of mutual promises; and,
- 4th. A continuing consideration.

8. As to cases where the contract has been set aside on the ground of a total failure of the consideration, see 11 Johns. R. 50; 7 Mass. 14; 8 Johns. R. 458; 8 Mass. 46 6 Cranch, 53; 2 Caines' Rep. 246 and 1 Camp. 40, n. When the consideration turns out to be false and fails, there is no contract; as, for example, if my father by his will gives me all his estate, charged with the payment of a thousand dollars, and I promise to give you my house instead of the legacy to you, and you agree to buy it with the legacy, and before the contract is completed, and I make you a deed for the house, I discover that my father made a codicil to his will and by it be revoked the gift to you' I am not bound to complete the contract by making you a deed for my house.


Bouvier’s Maxims
A contract founded on a base and unlawful consideration, or against good morals, is null.

No action arises out of an immoral consideration.

Black’s Law Dictionary, 1st Edition, 1891
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The Century Dictionary, an Encyclopedic Lexicon of the English Language, Vol. 2, 1895
Consideration

8. In law, that which a contracting party accepts as an equivalent for a service rendered; the sum or thing given, or service rendered, in exchange for something else, or the sum, thing, or service received in exchange for something; the price of a promise or a transfer of property.

This may consist either in a benefit to the promisor or a burden assumed by the promisee, or both. A contract must be mutual, and one side is the consideration of the other. A promise made without any such counter compensation or equivalent may be binding in morals, but the law does not recognize it as a contract nor compel its performance. It is not essential that a consideration be an equivalent in a commercial sense, nor even that it have any commercial value. Even exoneration from a moral obligation which could not be enforced at law may be a consideration for an express promise to perform it : thus, where a debtor, after a legal discharge in bankruptcy or by the statute of limitations, without having paid anything, recognizes his moral obligation to pay, and makes an express promise to do so, the moral obligation is deemed a sufficient consideration to make the promise a legal contract.

— Concurrent consideration, a consideration received contemporaneously with the making of the promise.

— Executed consideration, a consideration previously received.

— Executory consideration, a consideration that was to be received subsequently to the making of the promise.

— Failure of consideration, resulting worthlessness or inadequacy of a consideration originally apparently good : distinguished from want of consideration (which see, below).

— Good consideration, the natural love or affection, or other adequate motive, on account of which a benefit is conferred without a valuable equivalent. Such a consideration is generally sufficient, except as against creditors.

— Valuable consideration, in law, a consideration which may be deemed valuable in a pecuniary sense, as money, goods, services, or the promise of either. Actual marriage may also be a valuable consideration

— Want Of consideration, original lack of any consideration whatever.

= Syn. 1 and 2. Attention, reflection.

The Complete Book of Everyday Christianity, Robert Banks and R. Paul Stevens, 1997
A third contract essential is the concept of “consideration”: an exchange of rights and obligations between the contracting parties. While the law does not attempt to regulate the value or inherent fairness of what rights go back and forth, nonetheless if all of the rights flow only in one direction, there is no contract and thus nothing to enforce at law. By way of example, an agreement to sell an entire city block for a mere ten dollars is enforceable, whereas an unsolicited promise to give a stranger a free book is not enforceable.
Wex Legal Dictionary
Consideration
Something bargained for and received by a promisor from a promisee. Common types of consideration include real or personal property, a return promise, some act, or a forbearance. Consideration or a valid substitute is required to have a contract.

Valuable consideration
A benefit conferred or a detriment incurred by a party in exchange for another's promise. Valuable consideration may be non-monetary as long as it is of some value to one or both parties. Also called good and valuable consideration and legal consideration.

Failure of Consideration
In contracts, a party trades something of value in exchange for consideration. The term failure of consideration implies that the consideration, which was sufficient at the time of bargaining, has ceased to be sufficient. This could happen if the consideration offered becomes worthless, or if the party promising to furnish the consideration fails to do so.
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