Examples
(1) I promise to give you $5000 if you do not go without food for two days.
Describe a situation in which this promise is enforceable.
Describe a situation in which it is not.
(2) Tillie’s favorite brother died recently, and Tillie very much wants her nephew
Charley to attend the funeral. She promises to pay him $500 if he does. Charley
promises to attend and does so. However, when Tillie finds out that he had
planned to attend the funeral anyway before she offered to pay $500, she refuses
to pay.
Under the bargain theory, is Tillie’s promise is enforceable?
Sample answer
Under the bargain theory, Tillie’s promise is enforceable only if Tillie gave her
promise order to get Charley’s promise in return, and Charley gave his promise in
exchange for Tillie’s. This requirement is certainly fulfilled. The whole point of
Tillie’s promise is to get Charley to promise to attend the funeral, and Charley does
so promise in exchange for Tillie’s promise.
Note: it does not matter that Charley intended to attend the funeral anyway,
even without Tillie’s promise of money. All that is required is that Charley give his
promise in exchange for Tillie’s, and Charley did so. In general, we often act for
more than one reason. You may attend law school because you find it interesting,
and because you want to acquire skills you can use to make a living. Similarly,
Charley attends the funeral for two reasons—because of his aunt’s promise, and
because he wanted to pay his respects to his dead uncle.
The court may nonetheless not enforce Tillie’s promise. It may not do so if
the court sees the exchange of promises as too private and personal a matter. The
tradition in liberal democratic governments is that there is a zone of privacy into
which the state does not intrude. This cuts two ways. It protects from an overintrusive state, but it also means that we may not be able to invoke the power of
the state to enforce agreements made within the zone of privacy.
It is arguable that Tillie’s bargain with Charley was like a commercial
exchange. Tillie was buying something—namely, the peace of mind of the
additional assurance, secured by the promise, that Charley would attend the
funeral. Viewed in this way, the exchange as more like a commercial exchange
that an agreement within the zone of family privacy.
(3) Smith calls his wife at her work and invites her to lunch. She says she is really
in the mood just to grab a quick lunch at the cafeteria in her building. Smith
overcomes her reluctance by promising to buy her, immediately after lunch, the
expensive bracelet that she has been wanting. Between the phone call and lunch,
Smith opens his visa bill and, stunned by the balance due decides not to buy the
bracelet. He does not, however, inform his wife of this decision until after lunch.
(4) Smith calls his wife Linda at her work. He says, "I really need your expert
advice on a project. You know that emerald bracelet you have been wanting, give
me your advice over lunch and I will buy it for you. I promise." Linda says, "OK,
give me the bracelet and I won't bill you." (She normally charges $200/hour, and
she has typically billed Smith for business advice given at lunch in the past.) Linda
shows up at lunch; advises Smith, but Smith refuses to buy the bracelet.
(5) Smith calls his ex-wife at her work to discuss how they plan to pay their
daughter’s private school tuition. Smith says, “Look, if you promise to pay the
Spring tuition, I promise to pay the Fall”, and they agree on this. Smith fails to
keep his promise.
(6) Julie, a partner at a prestigious Chicago law firm, owns a $26,000 Harley
Davidson motorcycle that she persists in parking right in front of the front door of
the family home. One day, her husband, having grown tired of asking her to park
the bike neatly in the garage, promises that that the next time he finds the bike
obstructing the front door, he will lock it in the basement. Julie ignores this threat
and, the next day, leaves her bike in the usual spot. When her husband returns
from work, he is just too tired to lock the bike in the basement. While they are
eating dinner, the bike is stolen. Julie does not have theft insurance on the bike.
She blames her husband for her loss because had he locked up the motorcycle as
promised, it would not have been stolen. Is the husband’s promise enforceable?
(7) Mr. Eldee is marrying Ms. Young. He agrees to marry her on the condition that
she sign a pre-nuptial agreement in which he promises to pay her a lump sum of
$500,000 should they divorce, and in which she waives any right she may have to
alimony or other forms of monetary support. Is there consideration for Ms. Young’s
promise?