The Law Will Not Enforce An Agreement That Has Not Been Bargained For

The courts do not consider the suitability of the consideration, but require (with a few exceptions) that the promiser has no legal disadvantage (the surrender of a legal right he or she holds – somewhat to obtain the negotiated benefit). The waiver of the right of appeal is a legal disadvantage and the problem arises in the analysis of different types of dispute settlement agreements (agreement and satisfaction): the obligation to pay the full amount demanded by a creditor for a liquid debt, an unliquidated debt and a controversial debt. I find it hard to believe that, without the doctrine of reflection, there would be an eruption of people trying to impose informal agreements with relatives that should never be enforceable. Perhaps it was more difficult, for example in the pre-industrialized world, to distinguish between trade agreements and personal agreements. In small farming communities, there was perhaps more premium in following the distinction between intimate and non-intimate. I think our intuition that promises would not be feasible is based primarily on the implausibility that we see the parties as an intention that this agreement will be legally enforceable. It is customary that many negotiated exchanges, especially between confidants, are not enforceable for the simple reason that they are not supposed to be. The most discussed examples are the agreements between confidants of the house (“I do the dishes when you wash the laundry”). 27 There is nothing problematic about the idea that this is an exchange.

We simply do not expect the law to impose all exchanges, even all traded exchanges. .

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