Knuckles, William R.

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University of Kentucky

Kentucky Law JournalVolume 29 | Issue 2 Article 71941Consideration--Performance of Existing LegalObligation as Consideration for a New ContractWilliam R. KnucklesUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Contracts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationKnuckles, William R. (1941) "Consideration--Performance of Existing Legal Obligation as Consideration for a New Contract,"Kentucky Law Journal: Vol. 29 : Iss. 2 , Article 7.Available at: https://uknowledge.uky.edu/klj/vol29/iss2/7STUDENT NOTESCONSIDERATION-PERFORMANCE OF EXISTING LEGALOBLIGATION AS CONSIDERATION FOR A NEWCONTRACT.In discussing this problem it is necessary to deal with prior legalobligation as consideration in the same manner as consideration isdealt with in forming any original contract. The courts in renderingtheir decisions have been content to base them upon the particularphase of consideration that each case presents. One court emphasizesbenefit to the promisor, while another discusses primarily detrimentto the promisee. This accounts for a diversity of opinion as to whatreally amounts to consideration.It is the purpose of the writer to set forth the benefit to the prom-isor and detriment to the promisee phases of consideration. A furtherattempt will be made to show the interdependence of the two in con-stituting consideration.A common definition of consideration requires that it shall be eithera detriment to the promisee or a benefit to the promisor.' If this isto be accepted as the correct definition without any further qualifica-tion, it would seem that the two terms were intended to be used in thealternative. This would enable either to serve as consideration.2Accofding to this usage the case of McDevitt v. Stokes3 would have beendecided differently. In this case the Plaintiff McDevitt was bound bycontract to drive for one Shaw in the Kentucky futurity race for trot-ting horses. The defendant Stokes promised to pay McDevitt one thou-sand dollars if he would win the race with the particular horse he wasunder contract to drive. Stokes owned the sire of that horse, and itsvalue would be increased by the winning of this race by the horseridden by Plaintiff. McDevitt won the race and he contended that thebenefit thus accruing to Stokes served as consideration for his promiseto pay the one thousand dollars. The Kentucky Court held that ful-filling a prior legal obligation did not furnish consideration. This hold-ing is in accord with the majority rule in the United States.'The minority rule, however, is that performance of a prior legalobligation constitutes consideration for a new contract. This holdingis based upon the fact that the promisor receives an economic benefitI Temple v. Brooks, 165 App. Div. 661, 151 N. Y. S. 490 (1915);McDevitt v. Stokes, 174 Ky. 515, 192 S. W. 681 (1917).2 Van Winkle v. King, 145 Ky. 691, 141 S. W. 46 (1911).3174 Ky. 515, 192 S. W. 681 (1917).4 See Day v. Gardner, 42 N. J. Eq. 199, 7 Atl. 365, 367 (1886).STUDENT NoTEstrom such performance.' This construction of the term "benefit" isincorrect without a further qualification. "Benefit" means that thepromisor has In return for a promise acquired some legal right towhich he would not have been otherwise entitled.' The promisor mayreceive an economic benefit from one's performance of an obligation.But if that benefit would have accrued incidentally to performance ofa prior obligation it may be said that he is entitled to it whether or nothe makes a promise.There Is another line of opinion concerning the performance orpromise of performance of a prior legal obligation as consideration.It is based upon the contention that a party so bound has the privilegeof performing the obligation, or of breaching it and paying damages.'The surrender of this right is viewed as furnishing consideration for anew promise.8 This contention woud fall short as a general rulebecause the promisee in any valid contract is entitled to the promisor'sfulfillment of his part of the contract. To hold otherwise would under-mine the fundamental principle of contracts. If one is under contractto do an act or forbearance in the future, it may be said that he is notinstantly legally bound to do the act. He is however obligated to holdhimself in readiness to perform when the time for performance arrives.He may not of his own accord release himself from the obligation.To breach the contract and pay damages would not be a release fromobligation." The damages to be paid may be assessed commensuratewith the loss sustained by the obligee. This loss would be equivalentto the effect of non-performance. Whichever course the obligor pursuescarries with it a legal obligation of approximately an equal value.Where one offers to fulfill an existing legal obligation as considera-tion for a promise made by a third party, no benefit would be conferredon the third party promisor by breaching and paying damages to theoriginal obligee. Such failure to confer a benefit would defeat theidea of consideration based entirely upon benefit to the promisor.Should one legally bound forego the assumed right to breach and paydamages, he would still confer no benefit upon the third party promisorthat the latter would not have incidentally received. Williston pointsout that to breach and pay damages is not a right, but a power of con-tract.1051 Williston, Contracts (1936) Sec. 131; Briskin v. Packard MotorCo., 269 Mass. 394, 169 N. E. 148 (1929).6 Page, Contracts (2d Edition 1920) See. 515; 1 Williston, Con-tracts (Student Edition 1938) Sec. 102a.' Lattimore v. Harsen, 14 Johns. 330 (N. Y. 1817).s Sargent v. Robertson, 17 Ind. 411, 46 N. E. 925 (1897); Munroe v.Perkins, 9 Pick. 298, 20 Am. Dec. 475 (1830); Tobin v. Kells, 207 Mass.304, 93 N. E. 596 (1911); Restatement Law Contracts, Sec. 84(d):"Consideration is not insufficient because of the fact the party givingIt Is then bound by a contractual or quasi contractual duty to a thirdperson to perform the act or forbearance given or promised as con-sideration."'3 Elliott, Contracts (1913) Sec. 2095." 1 Williston, Contracts (1936) Sec. 130.KENTUCKY LAW JOURNALViewing consideration from the standpoint of a detriment to thepromisee, one already bound would suffer no actual loss by performinghis obligation. Such obligor has received or is to receive compensationfor performing his obligation. The compensation springs from thetransaction through which he became bound. It serves as an offset forany inconvenience he may suffer as a result of performing the act orforebearance.A legal detriment need not be an actual pecuniary loss of some-thing of present value." It may consist of a forbearance which wouldbe prejudicial to the promisee by effecting his reasonably anticipatedeconomic status for the future. It may consist of an act which thepromisee is not obliged to do." Anything that from its nature wouldbe a disadvantage to the party from which it moved would be a detri-ment."The terms "benefit" and "detriment", each used in relation to con-sideration, contains an element of the other. A benefit to the promisorwould consist of something of value to the promisor, moving from thepromisee or a third person. The value thus accruing to the promisormay not flow directly to him, but may flow to a third person." Thecourts however place no less emphasis upon its validity as considera-tion. The promisor has in that instance received something whichserves as consideration, founded upon the principle that he receivedwhat he bargained for." The thing moving, in addition to moving tothe promisor or some third party, moves from the promisee or someother party. But if it moves from a third party it may be saidthat it does so upon the initiative of the promisee, or at least withhis sanction or approval. It matters not how insignificant the con-sideration, or how slight the inconvenience to the promisee; if it Issusceptible of legal estimation it serves as consideration."Performance of an act which one is already legally bound to per-form furnishes no consideration for a new contract with the originalpromisor," nor with a third party.182"1 Williston, Contracts (1936) Sec. 446."1 Williston, Contracts (Student Ed. 1938) Sec. 102a; Pershall v.Elliot, 249 N. Y. 183, 163 N. E. 554 (1923)."Wallace v. Cook, 190 Ky. 262, 227 S. W. 279 (1921).M Luigart v. Fed. Parquartry Mfg. Co., 194 Ky. 213, 238 S. W. 758(1922).5Bromfield v. Trinidad Nay. Inv. Co., 36 F. (2d) 646, 71 A. L R.542 (1929); Williston, Contracts (Students Edition 1938) Sec. 113.-Mullen v. Hawkins, 141 Ind. 363 (1895).17 Blake v. Blake, 7 Iowa (7 Clarke) 46 (1858). (Held: A bona fideagreement will be valid, no matter how insignificant the consideration,or how slight the inconvenience or damage appears to be to the prom-isee, provided it is susceptible of legal estimation.)-Reynolds v. Nugent, 25 Ind. 328 (1865); Ford v. Crenshaw, 11 Ky.(1 Litt.) 68 (1822).STUDENT NOTESThe writer contends that a valid consideration consists of a benefitto the promisor to which he is not already entitled, and a detriment tothe promisee to which he is not already bound. Unless both thesefactors are present, theke is no consideration, and a fortiorari nocontract.'WnmaI R. KNucxL sNEGLIGENCE: THE STANDARD OF CARE REQUIRED OFPHYSICIANSThe standard of care generally required by the courts in negligencecases is the degree of care that would be exercised by a reasonableprudent man under the circumstances. The standard of care requiredof a physician is the care ordinarily exercised by an average physicianIn good standing practicing in the same or similar locality.1The cases do not make it clear why this change has been maderegarding physicians. There is a close analogy in the law pertainingto persons who are hindered with physical infirmities. The amount ofcare required of such persons takes into account their defects. Insteadof holding that the physical defect is one of the circumstances, thecourts have called the attention of the jury to those defects directly byrequiring the standard of care as usually exercised by persons with likeinfirmities.2 This departure from the general rule in the case of per-sons with physical defects was evidently made to insure the jury's con-sideration of these defects.What then is the reason for the departure from the general ruleIn the case of physicians? The physician is required to have spentsome time in preparing himself for his work. He is supposed to possessmore knowledge about the practice of medicine than the layman. It isonly fair then that the physician should be held to exercise a greateramount of skill than the layman. This requirement could have beenfulfilled by requiring the degree of care exercised by a reasonableprudent man under the circumstances, one of the circumstances beingthat defendant is a physician. Such a standard however does not callthe attention of the jury directly enough to the special skill and learn-ing of the defendent. In order to impress the jury with the fact thatdefendent holds himself out to the public as a skilled man, the courtscould have required the exercise of the degree of care generally exer-cised by an average physician. This requirement would have been'Moore v. Kuster, 238 Ky. 292 (1931).1 Dunnian v. Raney, 118 Ark. 337, 176 S. W. 339 (1915); Whitsell v.v, Hill, 101 Iowa 630, 70 N. W. 750 (1899); Wilks v. Black, 188 Mich.478, 154 N. W. 561 (1915); Hales v. Raines, 146 Mo. App. 232, 130 S. W.425 (1910).,Ham v. City of Lewiston, 94 Maine 265, 47 Atl. 548 (1900); CarterV, Village of Nunda, 66 N. Y. Supp. 1059, 55 App. Div. 501 (1900).Plaintiff however in going about public places alone was called uponto exercise such reasonable care and caution for his own safety as anordinary prudent person with a like infirmity would have exercised.

Consideration--Performance of Existing Legal Obligation as Consideration for a New Contract

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Consideration--Performance of Existing Legal Obligation as Consideration for a New Contract

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