PROMISES BINDING WITHOUT CONSIDERATION

C. Scope of promisor’s duty: If the promise to pay a previous debt is held enforceable, it is only enforceable under the precise terms of the promise, and the promisor cannot be held for more than that.

Examples: If the debtor promises only to pay a portion of the pre-existing debt, only that portion may be collected. Similarly, if she promises to pay it “if I am able,” the promise is only enforceable if the debtor does achieve an objective ability to make the payment. And if the debtor acknowledges that the debt still exists, but states that she does not intend to pay it, her acknowledgment does not operate as a promise, in view of the opposite intention she has manifested.

III. PROMISE TO PAY FOR BENEFITS RECEIVED

A. Promise to pay for benefits received generally: Suppose A has rendered a service to B, without having come to an express contractual agreement for the service (e.g., A has saved B’s life in an emergency). If, after the service has been rendered, B promises to pay a specified amount for it, is that promise enforceable? It is clearly not supported by consideration, since it was not even made until the services had already been rendered, and cannot therefore be said to have been bargained for by A. The question is therefore whether such a promise to pay for past services is enforceable without consideration. The enforceability of such a promise is likely to depend on several factors, including whether the recipient initially requested the services, and whether the donor rendered them in expectation that he would receive payment.

1. Where services were requested, and rendered with an expectation of payment: Where the services were initially requested by the recipient, the enforceability of the later promise to pay doesn’t matter very much, because the initial request probably created an implied-in-fact contract to pay for them. (This assumes that the person who performed the services expected to be paid for them.)

a. Requested act performed as favor: Now, suppose that the services were requested, but the person performing them intended that they be a gift. If the recipient later promises to pay for the services, most courts (and Rest. 2d, § 86(2)(a)) will not enforce the promise. See C&P, p. 227.

2. Benefits previously received but not requested: The most interesting case is where A renders services to B without B‘s having expressly requested the services, and B then promises to pay. We assume that at the time A renders the services, he is not intending a gift.[1]