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.
slacker is right promise + promise = bilateral contract
No....1. Guy offers promise for performance2. Other guy counters with promise for promise3. An agreement is made, promise for promise4. Promise + Promise = bilateral contractBut I may be wrong. Next time longer and clearer hypo.
Quote from: courselines on November 11, 2006, 12:01:42 PMNo....1. Guy offers promise for performance2. Other guy counters with promise for promise3. An agreement is made, promise for promise4. Promise + Promise = bilateral contractBut 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.
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").