Black-letter propositions
- 01
Adequacy is generally irrelevant, but nominal sham recitals, past consideration, and illusory promises are not bargained-for value.
- 02
A promise to perform an existing legal duty is not new common-law consideration, subject to unforeseen difficulty, third-party, and honest-dispute principles.
- 03
UCC modifications require good faith rather than consideration but must satisfy the Statute of Frauds when the modified contract falls within it.
- 04
Promissory estoppel requires a promise, foreseeable and actual reliance, and enforcement necessary to avoid injustice; remedy may be limited as justice requires.
Use this attack sequence under time
Frame the issue
Identify the promise and requested return.
Resolve the next checkpoint
Ask whether exchange was bargained for and legally sufficient.
Resolve the next checkpoint
For modification, choose common law or UCC and test writing requirements.
Finish the conclusion
If consideration fails, test reliance and remedy.
Common wrong turns
- Motive is not the same as bargain.
- A condition on a gift does not necessarily supply consideration.
- Good faith does not rescue a coerced UCC modification.
Worked example
A builder demands more money to perform exactly the original duty because material prices predictably rose.
Under common law, the modification lacks new consideration unless an exception applies; ordinary predictable cost changes may not qualify as unforeseen. Duress should also be considered if the owner had no practical alternative.
Practice this topic
What the encyclopedia and Article 2 say
Cornell defines consideration as the mutual exchange of promises or obligations between the parties to a contract, a necessary element for a valid contract. Both parties must assume some obligation that binds them, instead of making a gratuitous promise, and the order of the events does not affect validity. UCC 2-209(1) says an agreement modifying a contract within Article 2 needs no consideration to be binding.
Section 2-209(2) says a signed agreement excluding modification except by a signed writing cannot be otherwise modified, though a requirement on a form supplied by a merchant must be separately signed by the other party unless between merchants. Section 2-209(3) requires satisfying the statute of frauds if the contract as modified is within it. Section 2-209(4) says an attempted modification that fails can operate as a waiver.
Promissory estoppel
Cornell says promissory estoppel lets a promisee recover when they reasonably and detrimentally relied on a promise and the promisor could have foreseen the reliance, when enforcing the promise is necessary to avoid injustice. It may apply even when no formal contract exists, such as when there is no consideration.
Cornell's example is the promisee who sells property in reliance on a promise that is later not fulfilled. Compare the elements: reasonable reliance, detriment, foreseeability and injustice.
Frequently asked questions
What is the controlling rule for consideration, modification, and promissory estoppel?+
Consideration requires bargained-for legal value; modifications use governing-law-specific rules, and serious foreseeable reliance may support limited enforcement without consideration.
What is consideration on the bar exam?+
The mutual exchange of promises or obligations between the parties, a necessary element of a valid contract, according to Cornell's summary.
Can a no-oral-modification clause be enforced?+
Yes, under UCC 2-209(2), a signed agreement excluding modification except by a signed writing cannot be otherwise modified, with special signing rules for merchant forms.
What is promissory estoppel?+
A doctrine allowing a promisee to recover after reasonable and detrimental reliance on a promise the promisor could foresee, when enforcement is needed to avoid injustice.
Can a failed modification still matter?+
Yes. UCC 2-209(4) says an attempt at modification that does not satisfy subsection (2) or (3) can operate as a waiver.