Category: Contract law

What is “past performance” or “past consideration” in contract law?

Every contract needs consideration.  For example. in a  bilateral contract each party must promise to do something that he was not already required to do, or to agree to not do something he was allowed to do.  For example, A promises to pay B $100 if B agrees to clean A’s car.  B agrees.  Now we have consideration.  Both parties are promising to do something they otherwise would not be required to do. But something a person already did – – an act prior to negotiating the contract – – is not considered consideration. Courts call this “past performance” or “past consideration”. Let’s say A cleans B’s car and B says, “Great job!  I’ll pay you $50.”   Is there a contract?  Probably not.  B does not have a contractual obligation to pay A. Why? Because A’s act occurred in the past.  A & B never agreed that that A should clean B’s car.  B might be grateful and could feel a moral obligation towards A but there is no contract.  To have legal consideration the parties must reach an agreement as to what each party will give and what each party will get. Get a Civ Pro Quiz Ebook! 101 Civ Pro Questions and Explanations...

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What is the mailbox rule?

The common law mailbox rule is a frequent topic on bar and law school exams.  The rule governs when an offer is accepted.   The law only applies to communciations by mail or by some type of delivery service.  Your state may have law determining whether and how the mailbox rule applies to emails and texts.  The law does not apply to face-to-face discussions or telephone calls. The rule is this:  An offer is accepted once the offeree sends his acceptance by mail, provided he addresses the acceptance correctly.  That’s it.  There’s one exception where the offeree sends more than one communication and I talk about that below.  Everything else in the exam is meant to confuse you.  The mailbox rule does not apply to anything except for mail or courier service and only applies to acceptances – – not revocations, counteroffers, etc. Let’s say Oliver sends a letter to Alan in which he offers to paint Alan’s fence (does anyone send letters like this?).  Maybe Oliver tells Alan in the letter that Alan has until January 16 to accept the offer.  Alan sends a properly addressed letter back to Oliver accepting the offer sometime before January 16.  Say he sends the letter January 15.  Good.  The offer was accepted on January 15.  That is the mailbox rule.  Even if the letter doesn’t reach Oliver, the offer was accepted...

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Is promissory estoppel the same in England as it is in the United States?

No, I don’t think so.  I’m not a UK lawyer but to the extent I understand English law, promissory estoppel in the US is different.  You will see some people compare promissory estoppel in the United States to a sword but compare promissory estoppel in England to a shield.  Possibly, and I’m not sure, the English principle that a court will enforce a gratuitous promise in a deed is closer to the US doctrine of promissory estoppel. Scholars in the US originally called promissory estoppel a “Promise Reasonably Inducing Definite and Substantial Action.”  If there is a promise, an action in reliance on the promise, a reasonable expectation that the person would rely on the promise, then the promise can be the basis for a lawsuit.  For example, let’s say A promises B, “I’ll pay you $100,000 because I like you.”   This is not a contract.  If A doesn’t pay, B won’t win a lawsuit for breach of contract because there was no consideration.  But let’s say B quits her job.  And under the circumstances A should have reasonably expected that B would quit her job based on his promise.  B could sue based on promissory estoppel and she might recover some money she lost as a result of quitting her job.   As I understand English law a party can raise a defense based on promissory estoppel...

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