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Abstract

Contractual arrangements are private and consensual—the result of bargains made between parties—bargains that satisfy the consideration requirement for enforcement. While the consideration requirement has its detractors, as does the consensual nature of contract, the bargained-for consideration requirement remains a staple of contract law. Yet traditional consideration analysis seems to sometimes leave deserving claimants without a remedy. Thus, a limited group of exceptions has been developed to correct this perceived failing of the doctrine. For some situations, however, the deficiency is more perceived than real, and the solution adds confusion rather than clarity to the law. This is true for the “moral obligation” exception to the doctrine of consideration to allow a contract recovery under what admittedly may be compelling circumstances. There is much to be said for preserving as far as possible the underlying principles of contract law, and resisting the temptation to stretch contract law to provide redress for situations in which other doctrines work even better. The exception, by essentially dispensing with the consideration requirement, unnecessarily departs from the bargain requirement, and brings into the public arena the rather individual and personal decision of just what are the dictates of morality. In the moral obligation cases, the temptation to use a contractual remedy arises largely from a concern that restitution may not work, leaving no other remedy available. Yet restitution often provides adequate remedies, and is actually more satisfactory than contract. As stated by Fuller and Perdue in their well-known article The Reliance Interest in Contract Damages: “We are still all too willing to embrace the conceit that it is possible to manipulate legal concepts without the orientation which comes from the simple inquiry: toward what end is this activity directed?” In these cases, the activity is directed toward compensating for unjust enrichment, and the contract, if there is one, is an agreement to settle the restitution claim. Courts create confusion and unpredictability in the law when they fail to properly state the basis of the claim. As a result, some legitimate claims go unsatisfied, and there is needless litigation over claims that have no real legal basis.

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