Whitten v. Greeley-Shaw
520 A.2d 1307 (
Facts: The plaintiff and defendant had an affair. The defendant drew up a contract that the
plaintiff signed that said the plaintiff must do certain things, but the only
condition on the defendant was that she mustn’t call the plaintiff without
permission. Later, the plaintiff loaned
the defendant $64,000 and the defendant defaulted. The plaintiff sued to foreclose on the
defendant, and the defendant counter-claimed based on the contract.
Issue: Is the contract enforceable?
Rule: Consideration must consist of either a good or a
promise that is “sought after” by the other party.
Analysis: The court finds that the defendant’s promise was not
bargained for, and thus it does not constitute consideration.
Conclusion: The court ruled that the contract was unenforceable.
Note
The rationale of Hamer
reaches the case mentioned because even if the nephew really definitively
planned to go to the funeral, it was still his legal right not to, so
his waiver of his legal right would still constitute consideration.
Is the requirement of consideration
an element of form or substance? Might this test be overly broad?
If the Hamer test was
applied strictly to Whitten, it might seem like there was real
consideration if the defendant actually did not exercise her right to call the plaintiff’s
homes and offices. It might also be
argued that the continuation of the affair itself could be interpreted as consideration
on the part of the defendant. This seems
to be the implicit reason that the plaintiff agreed to make all these allegedly
unilateral promises.
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