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i

Such a promise amounts to a DONATIVE PROMISE

b

If MATERIAL BENEFIT conferred upon promisor in past that gave rise to obligation (even only moral obl) to make compensation, this may constitute consideration for subsequent promise to repay.  (Webb)

i

In Mills, a favor was done for the legal-age son of the promisor — not for the promisor himself.  Promisor not held to his promise to pay back benefactor

ii

In Webb, favor was done for the promisor.  Promisor held to his promise to pay back benefactor

c

Rest holds that promise binding for past benefit binding so far as justice requires.  (Rest § 86)

i

So Webb situation probably would be enforced under Rest

d

BUT if orig benefit was a GIFT, subsequent promise not enforceable.  Ex: A gives B a car for his birthday.  B then promises to reimburse A.  Promise unenforceable

D

Waiver — did the promise merely waive a nonmaterial condition under a bargain?

1

Waiver is enforceable if ELTS:  (Rest § 84)

a

There is separate consid for the waiver promise

b

OR

i

Waived condition was not material part of agreed-upon exchange

ii

AND uncertainty of occurrence of condition wasn’t elt of risk assumed by party who gave waiver

2

Ex: You get fire insurance for $500k.  Your house doesn’t burn down, but ins co promises to pay you $500k anyway.  This promise wouldn’t be enforceable b/c there was no separate consid for the waiver, AND your house burning down was material part of exchange

a

But suppose your house did burn, and ins co req’d written notice w/in 30 days.  You get notice to ins co in 35 days.  Ins co promises to pay anyway.  This promise IS ENFORCEABLE — not material part, and uncertainty wasn’t elt of risk assumed by ins co

3

Ex: A’s payment to B for house construction contingent upon certification by inspector.  Inspector refuses cert b/c of minor deviations.  A promises to pay B anyway.  This is enforceable

4

Waiver may be withdrawn if ELTS:

a

Waiver not given for separate consid

b

AND other party hasn’t changed position in reliance on waiver

c

AND waiver relates to condition to be fulfilled by the other party, rather than by a third party

d

AND retraction occurs before waived condition was supposed to occur and there is r’ble time for other party to yet fulfill the condition

5

In fire ins example above, suppose your house did burn, and ins co then waived written notice req’t.  If it then retracted the waiver after 30 days had passed, retraction INVALID b/c time limit passed — no time for you to react.  (Ins co could give you an extension, though).  But if ins co retracted waiver one day after granting, waiver is VALID b/c time remains for you to give notice

6

In house construction example above, retraction of waiver INVALID for two reasons:

a

Waiver related to condition to be fulfilled by third party (building inspector)

b

At time waiver given, time for fulfilling condition (producing inspection cert) already passed

II

Accord and satisfaction

A

Def’ns

1

Accord = agr’t in which one party agrees to accept different perf in lieu of perf he was supposed to have received

2

Satisfaction = perf of accord by promisor

3

Executory = not fully performed

B

Accord + satisfaction = no problem

C

BUT executory accord rule: modification to K is UNENFORCEABLE, even if duties have changed, if there hasn’t yet been satisfaction (full perf)

1

Note that if new perf under accord is same as old perf, there would be legal duty rule problem

7

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