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a

Struct agr’ts exists where there is no mutuality, but parties enter into bargain anyway b/c existence of structure makes perf very likely

2

Types:

a

Bargain for chance.  (Wood)

i

Structure that aligns interests of parties.  Both are motivated to fulfill promise by potential of profit

ii

Ex: Licensing agr’t w/ no commitment by supplier to minimal level of production

b

Hostage theory.  (Laclede)

i

Structure agr’t so that non-perf would be so costly for other party that principal can pretty much rely on perf

ii

Hancock v. Shell is also a struct agr’t relying on hostage theory

V

Legal duty rule

A

Promise to do acts one is already legally obliged to do is not consid.  (Gray)

1

Exs: bound by another K (CONTRACTUAL DUTY); reward for cop capturing criminal (PUBLIC DUTY)

B

Doesn’t apply to unilateral K’s b/c no legal obligation under unilateral K

C

Alternatives to legal duty rule: uncon’y, duress, good faith

D

TODO See Rest § 73

E

Two common patterns where legal duty rule comes into play:

1

Promise to perform preexisting contractual duty for extra payment.  (Lingenfelder)

a

That is, MODIFICATION to existing contract

b

EXCEPTIONS:

i

Different promise; promise made to different party; promise to perf despite defense; fair modification due to UNANTICIPATED CIRCUMS (Angel — garbage collection)

ii

UCC good-faith mod: NO CONSID needed to modify K for sale of goods.  (UCC § 2-209(1))

c

If party A goes ahead and pays the add’l money to B, A can’t later recover the money

i

UNLESS price increase was obtained under conditions of economic duress.  (Austin) (Lingenfelder)

1

If you accede to the demand for more payment AFTER the perf is completed, you CAN’T recover the money b/c you’re no longer under duress

2

Promise to pay lesser amt as discharge of full obligation.  (Foakes)

a

But in many juris’s, this K is enforceable — no new consid req’d.  In other juris’s, agr’t to pay lesser amount SOONER constitutes consid — thus enforceable

b

Other EXCEPTIONS:

i

Different perf; honest dispute about validity of debt; amt of debt is uncertain (parties did not establish cost of svcs); agr’t not to file bankruptcy; consid given in form of taking out another loan from someone else

ii

More on uncertain debt amount:

1

Even where there is no honest dispute about whether the debtor owes the creditor an obligation, if the AMOUNT of the obl is uncertain, payment of an amount less than the amt the creditor claims is consid for discharge of debt in full (if creditor agrees to it)

2

Even where debtor only pays amt he admits he owes, payment is consid for discharge of debt in full.  (Flambeau)

3

TODO see Rest § 89

F

Full-payment checks

1

Common law:

a

Disputed debt rule

i

Full-payment check extinguishes debt if ELTS:

1

Good-faith dispute regarding amt owed

2

AND r’ble notice that check was tendered as full-payment check

5

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