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.
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.