Mr. Culbertson V. Mr. Brodsky
788 S.W.2d 156, 1990 Tex. App. LEXIS 1008
Texas Court of Appeals, 1990
An illusory promise is a statement which appears to form a legal contract; however, it is vague, and lacks mutuality, providing an option for the person making a promise to have no actual obligation to perform as stated. For example, if someone says "I will make you a pie tomorrow”, this is an illusory promise, because the subject of the pledge is not being asked for anything in return and the baker is receiving no consideration for the promised activity. Because there is no consideration, there is no contract and neither party can enforce the deal (Beatty Sameulson).
Mr. Brodsky ...view middle of the document...
Since there is no defined legal obligation between Mr. Brodsky and Mr. Culbertson, that deal cannot be classified as a contract, and, therefore, can’t be enforceable. Also, “every contract or duty within [the Uniform Commercial Code] imposes an obligation of good faith in its performance and enforcement”.
In order to be establish a contract, consideration must be of legal value and bargained for or exchanged (Beatty Samuelson). Mr. Brodsky did not give valid consideration that makes Mr. Culbertson’s offer to sell enforceable. Mr. Brodsky’s claim that Mr. Culbertson received earnest money is false. Mr. Culbertson (or his bank on his behalf) received a piece of paper that, depending upon Mr. Brodsky’s decision, may or may not become a cashable check.
The check (at least for 60 days) is not valuable consideration and does not establish a contract. To argue that the check, which could not be cashed for 60 days, was valuable consideration, it must be shown that it has some other value besides the potential cash value during the 60 days. If on day 61, Mr. Culbertson had cashed the check, it could have been valuable consideration that may have established a contract, if the contract had not otherwise expired (Darling, 2011).
To establish “value”, the promisee does or commits to doing something he had no prior legal duty to do, or refrains from doing something he was legally entitled to do , or must be a legal benefit to promisee, or a legal detriment to the promisor (Gifis). The inspection and engineering studies that Mr. Brodsky...