Past Consideration


The term “past consideration” refers to an act that was performed, or a promise that was made, before the new promise that is at issue and is being attempted to be enforced.  Under the law, past consideration cannot constitute consideration for the new contract because it was not given for that new promise.  “A past consideration is, in effect, no consideration at all; that is to say, it confers no benefit on the promisor, and involves no detriment to the promisee in respect of his promise.  It is some act or forbearance in time past by which a man has benefited without thereby incurring any legal liability.”  William R. Anson, Principles of the Law of Contract 149 (1919).

Reference Desk:

Unscheid v. Simnacher, 106 A.D.2d 380 (N.Y. 1984).

The law is well settled that

“in order for a promise to be enforceable as a contract, the promise must be supported by valid consideration * * * The essence of consideration is a legal detriment that has been bargained for and exchanged for the promise. In short, the detriment must induce the promise * * *

“The general rule is that past consideration is not consideration * * * A promise supported by past consideration is unenforceable because the detriment did not induce the promise. That is, `since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise'” (Citibank v London, 526 F Supp 793, 803).

Leonard v. Gallagher, 235 Cal. App. 2d 362 (1965)

It appears to be the universal rule throughout the United States that past consideration will not support a promise which is in excess of the promisor’s existing debt or duty (1A Corbin on Contracts, § 212.)[3] Thus in Herbert v.Lankershim, 9 Cal.2d 409, 478 [71 P.2d 220], it was held that prior services rendered at the request of a decedent would not support a promise to pay money therefor in excess of the reasonable value of the services.

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