Preexisting Rule 예외

The Pre-Existing Duty Rule

Rule: Agreeing to do something that you had to do in any case is not consideration.

Thus: If you were not allowed to do what you promised to forbear from, that is not consideration.

설명 : 18세 미만 음주 금지인 아이에게 당연히 지켜야 할 법을 하지 말라고 하면서 약속한 경우 아이는 원래 법적으로 음주하지 말아야 할 의무가 있는 바, 이를 지키면 무엇을 주겠다는 것은 consideration 이 없다고 봄.

If you promise to do what you were required by law, duty or contract to do in any case, that is not consideration.

The Pre-Existing Duty Rule – Examples

• A teenager promises to refrain from drinking until he reaches 21 years of age.
• A police officer solves a crime for which there was a reward; but which was his responsibility in any case.
• A debtor promises to pay a creditor $500 to cancel a $1,000 debt.
• However, if there is a good faith dispute as to a debt, an offer to pay part of it (as a compromise) is valid consideration.

The Pre-Existing Duty Rule – Exceptions (예외 두가지가 중요)

A promise to a third party to do the performance that was owed to the second party is valid consideration;

제 3자에게 본인이 기존에 갖고 있는 제2자에 대한 의무를 약속하는 경우 사람이 다르므로 consideration 인정됨. 기술적으로 사람이 다르므로 인정된다는건데, 이런 상황별 예외방식은 판례로 확립이 된 것으로 보이지만, 공부하는 학생 입장에서 그냥 이렇게만 알아두는건 참 논리적/철학적 연결성 없다고 생각함. 당연 나중에 기억이 안나겠지만, 아마도 판례상 판사가 예를 서술하며 깊은 논리적/철학적 내용을 설명했을 것으로 생각됨.

even though the performance was owed to the second party in any case.

비록, 의무가 기존 상대방에 대해서만 존재하지만, 어쨌든 상대방이 아닌 제3자에게 약속하는 것은 consideration 이 있다고 본다.

 If there is a valid defense to the deal, agreeing not to raise that defense is valid consideration.

Deal 에 있어서 진실된 defense 가 있는 경우라면 합의 후 이의를 제기하지 않는것을 약속하는 것도 consideration 이 있다고 본다. 알면서 분쟁상황을 조성해서 하면 안된다는 말임. 진짜 계약상 상호간의 분쟁이 있다고 본인도 인정해야 하는 상황이어야 함.

Pre-existing duty rule doesn’t apply if contract is rescinded and then re-formed.

계약이 철회되고, 다시 체결된 것은 pre-existing duty rule 적용 안하고 그냥 consideration 있는것으로 인정함.

A good faith modification based on unforeseen changed circumstances can be valid even without new consideration.

천재지변등 정말 예상못한 계약의 수정이 필요한 경우 계약수정시 원래 pre-existing duty 있었잖아 하면서 consideration 새로 만들지 않은거니까 하면서 consideration 을 부정하지 못한다. 따라서 consideration 있는 것으로 본다.

In UCC cases, modifications are binding even without changed circumstances; as long as they are made in good faith and without any duress or coercion.

UCC 에서는 계약수정시 상황이 변경되지 않았더라도 good faith without duress 인 상황이라면 consideration 유무 따지지 않는다. 여기서 더 생각해 보아야 할 문제는 상인간의 거래인 경우가 아닌 경우이다. 매 설명마다 상인간의 거래인경우와 아닌 경우를 구분해서 생각해 보아야 한다.

Partial Payment Check Rule

 Scenario:
 A debtor sends a check to the creditor for less than the full
amount of the debt; and the check says “IN FULL
PAYMENT” on it. The creditor cashes the check and then
sues for the rest.
 Basic Rule: Cashing the check could fairly be construed
as accepting the offer. Thus, it would be a binding
compromise, assuming that there is consideration for
taking the lower amount.
 Thus:
 If there was no dispute as to the original amount of the debt,
there is no consideration for the compromise, and so the original
amount of the debt stands.
 If there was a good faith dispute as to the original amount of the
debt, there is consideration for the compromise, and so the debt
is discharged

The Mutuality Principle: Exceptions

1) Unilateral Contracts

2) Contracts where there is a notice requirement before
termination

3) A contract that is voidable by one party because of a legal
disability

4) A conditional obligation that is beyond the party’s control

5) When a party has a choice on how to perform; but both
choices constitute a legal detriment

6) Where the parties leave a term open to be decided by one
party later (the court will infer a “reasonable” term)

7) Where a contract calls for one party to get a percentage of
profits or sales only; courts will infer a duty to use best
efforts

8) Output and Requirements contracts

The Pre-Existing Duty Rule

Rule: Agreeing to do something that you had to do in any case is not consideration.

Thus: If you were not allowed to do what you promised to forbear from, that is not consideration.

설명 : 18세 미만 음주 금지인 아이에게 당연히 지켜야 할 법을 하지 말라고 하면서 약속한 경우 아이는 원래 법적으로 음주하지 말아야 할 의무가 있는 바, 이를 지키면 무엇을 주겠다는 것은 consideration 이 없다고 봄.

If you promise to do what you were required by law, duty
or contract to do in any case, that is not consideration.
The Pre-Existing Duty Rule – Examples

 A teenager promises to refrain from drinking until he
reaches 21 years of age.
 A police officer solves a crime for which there was a
reward; but which was his responsibility in any case.
 A debtor promises to pay a creditor $500 to cancel a
$1,000 debt.
 However, if there is a good faith dispute as to a
debt, an offer to pay part of it (as a compromise)
is valid consideration.
Quiz Time!
The Pre-Existing Duty Rule – Exceptions
 A promise to a third party to do the performance that
was owed to the second party is valid consideration;
even though the performance was owed to the second
party in any case.
 If there is a valid defense to the deal, agreeing not to
raise that defense is valid consideration.
 Pre-existing duty rule doesn’t apply if contract is
rescinded and then re-formed.
 A good faith modification based on unforeseen changed
circumstances can be valid even without new
consideration.
In UCC cases, modifications are binding even without
changed circumstances; as long as they are made in good
faith and without any duress or coercion.
Partial Payment Check Rule
 Scenario:
 A debtor sends a check to the creditor for less than the full
amount of the debt; and the check says “IN FULL
PAYMENT” on it. The creditor cashes the check and then
sues for the rest.
 Basic Rule: Cashing the check could fairly be construed
as accepting the offer. Thus, it would be a binding
compromise, assuming that there is consideration for
taking the lower amount.
 Thus:
 If there was no dispute as to the original amount of the debt,
there is no consideration for the compromise, and so the original
amount of the debt stands.
 If there was a good faith dispute as to the original amount of the
debt, there is consideration for the compromise, and so the debt
is discharged