Whitten v. Greeley-Shaw

520 A.2d 1307 (1987).

One-Sentence Takeaway: Every binding contract requires consideration, which is a negotiated and sought-after item.

Summary: Plaintiff and Defendant had an extra-marital affair.  While the affair was ongoing, Plaintiff loaned Defendant $64,000.  Defendant defaulted on the loan and Plaintiff filed a lawsuit to enforce the promissory note.

Defendant filed a counterclaim against Plaintiff for alleged breach of a one-page written contract.  Under that alleged contract, Plaintiff had agreed to pay Defendant $500 per month for an indeterminate period, pay for any repairs to her home, pay for her medical needs, and to pay for other gifts (such as jewelry).  In exchange, Defendant promised not to call Plaintiff’s home or office without his prior approval.

The trial court dismissed the counterclaim and the appellate court affirmed.  The court determined that the written contract was void for lack of consideration.

The Court reasoned that Defendant’s promise not to call his married lover’s (Plaintiff) home and office without his permission was insufficient consideration for the substantial return promises because it was not negotiated and sought-after item:

The Plaintiff’s allegation of lack of consideration draws attention to the bargaining process; although the Defendant’s promise to forbear could constitute consideration, it cannot if it was not sought after by the Plaintiff, and motivated by his request that the Defendant not disturb him. Of this there was no evidence whatsoever. This clause, the only one that operates in the Plaintiff’s favor, was only included in the contract by the Defendant, because, she asserts, she felt the Plaintiff should get something in exchange for his promises. Clearly, this clause was not ‘bargained for’ by the Plaintiff, and not given in exchange for his promises, and as such cannot constitute the consideration necessary to support a contract.

Id. at 1310.

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