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a. Split of authority: Here, the cases are split. The older cases generally hold that B’s promise is unenforceable. But “the trend is clearly in favor of increased enforceability” of such promises. Farnsworth, § 2.8.

Example: Recall the facts of Mills v. Wyman (supra, p. 93): D’s son, a 25-year-old, becomes ill while traveling, and is nursed by P. D later writes to P, promising to pay P’s expenses.

  The court hearing the case (in 1825) held that D’s promise was not supported by consideration, since P’s services were not given at D’s request. But a modern court might well hold that such a promise made on account of “moral obligation” should be enforced.

b. Where benefit and cost are substantial: Even in courts that would not automatically hold that a promise to pay for unrequested past services should be automatically enforced, the court may choose to enforce the promise where the benefit to the recipient of the services (and/or the cost to the provider) was substantial. The case set forth in the following example is the classic illustration.

Example: A saves B’s life in an emergency, and is totally disabled in so doing. B then promises to pay A $15 every two weeks for the rest of A’s life, and makes these payments regularly for over eight years until he dies. The estate then refuses to continue the payments and A sues on the promise.

  Held, B’s promise is enforceable, even without consideration, because B incurred a substantial material benefit from A‘s act, even though B did not request the act. See Webb v. McGowin, 168 So. 196 (Ala. Ct. App. 1935). See also, Rest. 2d, § 86, Illustr. 7 (drawn from Webb).

c. Restatement view: The Second Restatement more or less follows the more modern, liberal, view. Receipt of an unrequested material benefit, followed by the receiver’s promise to pay for the benefit, is enforceable without consideration, but only “to the extent necessary to prevent injustice.” Rest. 2d, § 86(1).

i. Intent to make gift of services: The Restatement gives one illustration of a situation in which enforcement will definitely not be necessary to prevent injustice (and thus not enforceable): where the promisee “conferred the benefit as a gift.” Rest. 2d, § 86(2)(a).

ii. Request irrelevant: The Restatement does not distinguish at all between benefits that are requested by the promisor and those that are not. (In both situations, the promise is not binding if the promisee conferred the benefit as a gift; nor will the promise be enforced if its “value is disproportionate to the benefit.” Id.)

d. State statutes: Some states have enacted statutes to make enforceable promises to pay for services previously received. See, e.g., N.Y. Gen. Oblig. L. § 5-1105 and Cal. Civ. Code § 1606.

e. Restitution possibility: Also, in certain situations (e.g., emergencies and mistakes), the law of quasi-contract, or “restitution,” allows the person rendering the services to recover their reasonable value. See infra, p. 325. Where such a restitutionary recovery is possible, a subsequent promise by the recipient of the services to pay a particular sum for them may at least constitute evidence of the value of the services, even though the promise is not directly enforceable.

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