Also known as: bargained-for · bargain for · bargains for · bargained-for exchange
Written by attorneys · grounded in primary & secondary sources — see below
A performance or return promise sought by the promisor in exchange for a promise and given by the promisee in exchange for that promise. The exchange supplies the requisite element of consideration unless excluded by rules governing preexisting duties or illusory undertakings.
Pacific School asked Claudia to create a test-prep curriculum on her own time and stated it would find a way to compensate her. Claudia spent weeks designing and submitting the curriculum directly to the school. The school's request induced the work and Claudia supplied it because of the assurance of compensation. The performance therefore qualifies as bargained for and supplies consideration for the school's promise.
Pacific School offered Claudia a retention bonus if she refrained from accepting competing teaching offers during the exam cycle. Claudia declined all outside opportunities in direct response to the offer. The forbearance was sought by the school and given by Claudia because of the promised bonus. The return promise therefore meets the bargained-for requirement and constitutes consideration.
Select any source to read its text and confirm it supports the definition.
Pacific School offered Claudia a multi-year appointment if she signed an agreement converting her status and adding termination procedures plus arbitration. Claudia executed the document altering her legal relation. Each alternative performance would independently have been consideration if bargained for alone. The modification therefore satisfies the bargained-for test under the alternative-performance rule.
Bianca Baker and Bruce Baldwin lived together for years and accumulated assets while maintaining separate finances. They orally agreed that each would keep property titled in their own name and divide joint acquisitions according to contributions. The agreement addressed only economic sharing and contained no term conditioning performance on continuation of their personal relationship. The performances exchanged were therefore bargained for independently of any non-economic aspect of their arrangement.
Bay Area Systems purchased cigarettes from Boreal Energy under advertisements stating the product was safe. The buyer believed the safety claims at the time of purchase and paid the agreed price in reliance on them. The safety representation formed part of the basis of the bargain between the parties. The performance of payment was therefore bargained for in exchange for the warranty.
Bernard Bass agreed to pay Krell a sum for use of rooms overlooking the coronation route on two specific days. Both parties understood the payment was given solely for the opportunity to view the royal procession on those days. When the procession was cancelled the purpose for which the rooms were let no longer existed. The use of the rooms was bargained for only on the condition that the procession occur.
A performance is bargained for when the promisor seeks it in exchange for the promise and the promisee gives it in exchange for that promise. The exchange need not involve haggling. It requires only that each side regard the other's undertaking as the price of its own. This test appears in Restatement (Second) of Contracts § 71(2).
Supporting sources
No. The fact that what is bargained for does not itself induce the promise does not prevent it from being consideration. The objective exchange is sufficient even if subjective motive differs.
Supporting sources
Forbearance from conduct one has a legal right to engage in constitutes a performance that can be bargained for. When the promisor seeks the forbearance in exchange for a promise and the promisee refrains in response, the forbearance supplies consideration.
Supporting sources
Yes. The performance or return promise may be given to the promisor or to some other person and may be given by the promisee or by some other person. The identity of the recipient does not defeat the bargained-for character of the exchange.
Supporting sources
…artificial reproductive techniques," Professor Shultz argues, "intentions that are voluntarily chosen, deliberate, express and bargained-for ought presumptively to determine legal parenthood." ( Id., at p. 323, fn. omitted.) Another commentator has cogently suggested, in connection with reproductive technology, that "[t]he…