R2d § 73
Performance of Legal Duty
Performance of a legal duty owed to a promisor which is neither doubtful nor the subject of honest dispute is not consideration; but a similar performance is consideration if it differs from what was required by the duty in a way which reflects more than a pretense of bargain.
Professor's notes
Element: performance of a legal duty owed to a promisor which is neither doubtful nor the subject of honest dispute is not consideration; but a similar performance is consideration if it differs from what was required in a way which reflects more than a pretense of bargain.
This is the pre-existing duty rule.
Alaska Packers v. Domenico is the working case: fishermen mid-voyage demanding more wages had a pre-existing duty to fish. No consideration; modification void.
Common misunderstanding: students think the rule polices fairness. It does not. It is a gezerah-style prophylactic against coerced modifications. UCC § 2-209(1) eliminates the rule for goods; R2d § 89 narrows it for fair-and-equitable modifications under changed circumstances. Modern doctrine has eroded the rule substantially but not killed it.
Cases that operationalize this rule
Text
R2d § 73. Performance of Legal Duty.
Performance of a legal duty owed to a promisor which is neither doubtful nor the subject of honest dispute is not consideration; but a similar performance is consideration if it differs from what was required by the duty in a way which reflects more than a pretense of bargain.