Past Consideration & Moral Obligation

Hey barristers! Have you ever helped someone out of the goodness of your heart and then later the person wants to say thank you so they promise to give you something to show how much the appreciate what you did? Well, what happens when the person doesn’t make good on their promise? Past Consideration or moral obligation is the legal answer to problems like this.

Past Consideration actually consist of a traditional rule under the common law and a modern rule under the 2nd Restatement. The modern rule is an exception to the common law rule so it’s important to understand their relationship.

It was actually a situation like this that resulted in my friendship with Big Steve. It all began during the first semester of 1L. It was the night before our 2nd memo draft was due when I happened upon Big Steve’s fraternity brother Little Steve. He was pale, fatigued, dehydrated and suffering from general 1L exhaustion because of the fast approach memo deadline. Having finished my memo the previous week I nursed little Steve back to health with herbal remedies I picked up back packing through remote parts of China. When Big Steve learned of the great lengths I had taken he shot me a text promising to cover my tuition because of the charity I had shown poor Little Steve. When Big Steve didn’t follow through I took him to Judge Judy for breach of contract.

Initially Judge Judy went on a rant about how the Traditional Rule of Past Consideration or Moral obligation would treat Big Steve’s promise as unenforceable because by the time Big Steve made the promise to cover my tuition my charitable performance had already past. That meant that Big Steve’s promise couldn’t have been made in exchange or consideration for my performance. In other words I had not helped Little Steve in exchange for Big Steve’s promise to cover my tuition so there was no valid consideration to support an enforceable promise.

Just when I thought Judge Judy would rule for Big Steve, she began to explain the modern rule for past consideration or moral obligation. She explained that under the restatement past consideration or moral obligation may lead to enforceable promises if my nursing Little Steve to health was not intended as a gift and the promise to pay my tuition was not disproportionate to the benefit Little Steve received. While Judge Judy felt that I had not intended to make a gift to Little Steve she did think that covering my law school tuition was disproportionately more than the value of nursing Little Steve from fatigue and dehydration.

Funny thing is that after big Steve’s win we really hit off and we’ve been friends ever since. Now that you’ve got the big picture, read your cases, listen in lecture and get practice analyzing Past Consideration or Moral Obligation with practice problems.