Class 15: Module III Capstone: Consideration & Alternatives

Consideration · Oct 21

Module quiz, debrief, and promissory estoppel drafting.

By the end of class, you can

Sort a promise fact pattern into the correct doctrinal track (R2d § 71, § 90, § 86, or none) and explain which element decides the track.
Draft a one-paragraph clause that makes a promise enforceable under R2d § 90, and a counter-clause that defeats it.
State the policy reason the law refuses to enforce some promises that look serious and explain why that refusal is not a defect.

Today

Floor. Quiz (0:00 to 0:25) + item-level debrief (0:25 to 0:55). The quiz happens. The debrief covers every item with the doctrinal trap explained. ~55 min.

Target. Floor + drafting exercise (0:55 to 1:30) + closing synthesis (1:30 to 1:40). The drafting deliverable is collected at the end. ~85 min.

Three tracks to enforcement

R2d § 71 (Bargain). Performance sought by the promisor in exchange for the promise. Anchor cases: Hamer v. Sidway (promisee-side detriment), Pennsy Supply v. American Ash (promisor-side cost avoided).

R2d § 90 (Reliance). Clear promise + foreseeable reliance + actual reliance + injustice avoidable only by enforcement. Anchor cases: Ricketts v. Scothorn (historical), Conrad v. Fields (modern).

R2d § 86 (Material Benefit). Subsequent promise made in recognition of a tangible benefit previously received by the promisor; proportional; not a gift. Anchor cases: Webb v. McGowin (enforced), Drake v. Bell (enforced), Mills v. Wyman (refused).

No track available. Past consideration to a third party, vague encouragement, conditional gift with no inducement, modification without new consideration outside R2d § 89 or UCC § 2-209.

Havrutah: drafting a promissory-estoppel-protected promise

Text. R2d § 90(1): "A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."

Task. Each pair drafts two clauses about an educational tuition promise from grandparent to grandchild:
1. A one-paragraph clause that makes the promise enforceable under R2d § 90.
2. A counter-clause the grandparent's counsel could add that would defeat enforcement.

Roles. Pair up. One drafts the enforceable clause first; the other drafts the defeating counter-clause. After eight minutes, swap and critique.

When the law refuses to enforce

The module gave you three doctrines. The unenforced remainder is not an accident. What promises does the law leave unenforced, and why?

A friend promises to drive you to the airport. You miss your flight. No enforcement.
A parent promises a child a car at graduation. The child graduates. No bargain, no foreseeable reliance the law will police.
A donor pledges to a charity. Some courts enforce, some refuse.

Next time

Next class: Statute of Frauds

_Defenses_ · Oct 22

Read McIntosh v. Murphy and R2d §§ 110, 129, 139. The Statute requires certain contracts to be in writing. McIntosh moved across the country in reliance on an oral one-year employment promise; the writing came late. Should the law enforce a promise the parties never wrote down? Come ready to answer. You may be called.