Contracts question

[Mozart711]

Sounds right to me...I was caught off-guard by the subtlety of the question, which I quickly glanced over the hypo and did not notice this distinction.

If, as you say, the situation were like this:

Party A: I'll give you $100 if you swim accross the lake.

Party B: I promise to swim accross the lake if you give me $100 dollars.

(First of all, this looks more like the beginning of a scene from a Mel Brooks movie, but I'll continue. . .)

The dollar amount makes no difference. One cannot create a bilateral contract when the offer is for a unilateral contract. The only suitable consideration for the formation (and completion) of the unilateral contract is swimming accross the lake.

[courselines]

slacker is right promise + promise = bilateral contract

[Jumboshrimps]

slacker is right promise + promise = bilateral contract

This is not the case here. The facts are "someone makes a promise to give you something in return for your performance..."

Becasue the promise was not seeking a return promise, this is the definitive unilateral contract.

[courselines]

No....

1. Guy offers promise for performance
2. Other guy counters with promise for promise
3. An agreement is made, promise for promise
4. Promise + Promise = bilateral contract

But I may be wrong. Next time longer and clearer hypo.

[jacy85]

No....

1. Guy offers promise for performance
2. Other guy counters with promise for promise
3. An agreement is made, promise for promise
4. Promise + Promise = bilateral contract

But I may be wrong. Next time longer and clearer hypo.

You are wrong, not jumbo.

This is NOT a bilateral contract.  The offeror has complete power to define the terms of acceptance.  The offer is in exchange for PERFORMANCE.  By trying to accept the offer with a PROMISE for performance, the offeree is making a counter-offer.  Without some evidence showing that the original offeror accepted the counteroffer, there is NO contract at all.

[Mozart711]

No....

1. Guy offers promise for performance
2. Other guy counters with promise for promise
3. An agreement is made, promise for promise
4. Promise + Promise = bilateral contract

But I may be wrong. Next time longer and clearer hypo.

You are wrong, not jumbo.

This is NOT a bilateral contract.  The offeror has complete power to define the terms of acceptance.  The offer is in exchange for PERFORMANCE.  By trying to accept the offer with a PROMISE for performance, the offeree is making a counter-offer.  Without some evidence showing that the original offeror accepted the counteroffer, there is NO contract at all.

Exactly, once you get over that subtle distinction the hypo is quite clear and simple. Also, the benefit-detriment theory was replaced by the bargain-for exchange and no longer utilized by modern day courts, right? The reason I ask this is due to a lot of people/classmates still referring to this when contemplating if consideration exists.

[J D]

There's a LOT of overlap between the 2 theories, especially in the commercial context (try to think of a transaction that would have consideration under benefit/detriment but not under bargain, or vice versa, and I wouldn't be surprised if there's another way to view the transaction such that both come to the same result).  Usually, the reason why someone offers to put themselves at a detriment (i.e., burden themselves with the promise) is to get the benefit offered by the other side.  It's usually a pretty reciprocal relationship: the benefit which runs one way is the inducement for the burden/detriment running the other way.  People don't normally enter contracts, and thereby bind themselves to do something or not to do something, merely for their health; they do it because they expect to get something more valuable in return. 

Besides, in the common law system, a lot of these old legal rules and theories have a lot of inertia behind them.  It's not uncommon to find that courts still apply (even if mistakenly) the old analytical framework, even though statutes like the UCC have come along and changed everything.  See, for example, the rules applying to the award of specific performance, which is supposed to be a lot more liberally granted under the UCC, but which judges still don't award unless there's a unique good involved (even if there are "other proper circumstances").

[Mozart711]

But on a Contracts exam, wouldn't a student apply the bargain-for exchange or could someone apply the benefit-detriment and be equally right? I'm thinking that only the former would get the student points.

There's a LOT of overlap between the 2 theories, especially in the commercial context (try to think of a transaction that would have consideration under benefit/detriment but not under bargain, or vice versa, and I wouldn't be surprised if there's another way to view the transaction such that both come to the same result).  Usually, the reason why someone offers to put themselves at a detriment (i.e., burden themselves with the promise) is to get the benefit offered by the other side.  It's usually a pretty reciprocal relationship: the benefit which runs one way is the inducement for the burden/detriment running the other way.  People don't normally enter contracts, and thereby bind themselves to do something or not to do something, merely for their health; they do it because they expect to get something more valuable in return. 

Besides, in the common law system, a lot of these old legal rules and theories have a lot of inertia behind them.  It's not uncommon to find that courts still apply (even if mistakenly) the old analytical framework, even though statutes like the UCC have come along and changed everything.  See, for example, the rules applying to the award of specific performance, which is supposed to be a lot more liberally granted under the UCC, but which judges still don't award unless there's a unique good involved (even if there are "other proper circumstances").

[J D]

Depends on what your professor thinks of consideration.  Mine didn't really think there was that much of a practical difference between the 2 theories, and seemed rather skeptical about the need for the doctrine (agreeing with Lord Mansfield that, in transactions between businesspersons, you need not look for the consideration, since it's ALWAYS going to be there).  The classic formulation ("Benefit to promisor or detriment to promisee") still seemed to have a lot of currency with my professor.  Ask yours what his/her view is.

[sehrwunderbar]

I have to agree with the people that said it is a counteroffer and therefore no contract was formed.