Consideration, as we learned, is simply something of value exchanged between the parties to a contract. To qualify consideration, it must be:
- Legally sufficient, and
- Bargained-for
That is to say, the value the promisor places on the consideration must be of the same value the promisee places on performance of the contract terms. In other words, both parties want to know, 'What's in it for me?'
To illustrate this, if John (promisor) offers Jamal (promisee) $200.00 to repair his car, and Jamal accepts, the $200.00 is consideration (the value) for the repair (performance).
There are conditions consideration has to meet to have legally sufficient value. A party cannot promise to do something where there is already a legal obligation to do so. A police officer cannot collect a reward for the capture and arrest of an outlaw. The promisee must perform an act not ordinarily obligated to perform. A police officer cannot contract independent security services for his neighborhood while he is on duty at his regular job. He has a pre-existing obligation to secure the neighborhood.
Finally, for consideration to be of legally sufficient value, a party may refrain from exercising a right that the party is entitled to, like giving up the right to sue someone in exchange for restitution. For instance, let's say that in fixing the car, Jamal dented John's fender. Jamal apologizes and tells John that he will fix the dent for free and also give him a 10% discount on the original repair. If John accepts the deal, he cannot later sue Jamal for denting the car.
Consideration must also be bargained-for, meaning there is an exchange of promise and something of value where both parties gain a reward and receive a detriment in the contract. It's real simple! Let's say John and Jamal are now negotiating the sale of a bicycle that was displayed in the auto repair shop. John wants to take up biking, so he offers $50 to Jamal in exchange for the product. Jamal will give the bike to John upon receipt of the cash. So both parties bargain and receive a detriment. John's bank account is reduced by $50.00, but he received some new wheels. Jamal no longer has his bike, but has an extra $50.00.
Let's examine an interesting case where consideration was in question between an employer and an employee in a contract for employment.
Labriola V. Pollard Group, Inc. (2004)
In 1997, Pollard Group, Inc. hired Anthony Labriola as a commercial print salesperson. Upon hiring, Labriola signed an employment agreement. Under this agreement, Labriola agreed to at-will employment, meaning he could be terminated without cause. Also included in the employment contract was the agreed upon salary and commission structure.
But the most important clause in Labriola's contract was the restrictive covenant that prohibited him from working for a competitive company for a three-year period. Further, there was no pre-determined geographical area mentioned. This meant that Labriola, if separated from Pollard Group, Inc., would be restricted from working for any commercial printer for a period of three years regardless of where on the planet the new job is located! That is a restrictive clause, indeed!
Five years into Labriola's tenure, Pollard Group asked him to sign a Non-Competition and Confidentiality Agreement requiring Labriola to refrain from accepting employment with a competitor within a distance of 75 miles from Tacoma, Washington for a period of three years. The problem with the new non-competitive agreement is that it did not contain legally sufficient consideration.
Under contract law, consideration must be present and both benefit and cause detriment to both parties. In this case, only Pollard benefited from the new non-competitive agreement. Labriola essentially agreed to the same terms of the original contract: salary and commission, at-will employment and non-competition clause. The employer incurred no new obligations either. In fact, Pollard added a new clause further obligating Labriola for any attorney fees and costs should the contract come into dispute.
Some months later, Pollard restructured the way commissions would be paid to salesmen. In the previous contract, salesmen had to sell a minimum of $25,000 in print orders to receive commission. In the new contract, the print salesmen were required to sell a minimum of $60,000 in print orders. That increase in the sales quota, if not met, would reduce Labriola's income by 25%. The contract also required that salesmen pay any and all legal fees should legal action occur over the contract terms. Because of this, Labriola decided to seek employment elsewhere.
Sometime in November of 2002, Pollard Group received word that Labriola was looking to leave and immediately sent a letter to the potential employer letting them know about the agreement Labriola signed. Consequently, Labriola was not hired.
Labriola, disenfranchised by Pollard's actions, sought a declaratory judgment against Pollard to make the new agreement null and void. This type of judgment is used when a legal dispute has arisen, but before any damages have occurred. He also claimed that Pollard tortuously interfered with the employee's business. Unfortunately, the court of original jurisdiction ruled against Labriola.
In a higher court's review, it was agreed that offering only continued at-will employment to Labriola in exchange for signing a restrictive non-competitive contract was not sufficient consideration and therefore the contract was unenforceable. Labriola prevailed. Had Pollard Group offered Labriola something in exchange for the restrictive clause, the court may have saw it differently.
Lesson Summary
To sum it up: for a contract to be enforceable, six elements must be present:
- An offer made by the promisor
- An acceptance of the offer by the promisee
- Consideration in the form of money or a promise to do or not do something
- Mutuality between parties to carry out the promises of the contract
- Capacity of both parties in mind and age
- Legality of terms and conditions
We focused on consideration or an exchange of bargained-for promises between two or more parties. To qualify consideration, it must be:
- Legally sufficient, and
- Bargained-for
For consideration to be legally sufficient, it cannot be something that a party is already obligated to do, the party must perform an act not ordinarily obligated to perform, or refrain from doing something one has a legal right to do. We also learned that consideration must be bargained-for. This means both parties gain reward and experience detriment as a result of the contract. In Labriola v. Pollard Group, Inc, we witnessed an employee argue that his employee contract was unenforceable due to insufficient consideration because of the doctrine that consideration must benefit both parties and not obligate only one party without obligating the other.
Learning Outcomes
Upon completion of this lesson, you should be prepared to:
- Name the six elements a contract must have for it to be enforceable
- Comprehend the concept of consideration and understand when it is legally sufficient
- Indicate what it means for consideration to be bargained-for
- Dissect the case of Labriola v. Pollard Group
