Josh2.ashxEvery night around eleven o’ clock I wake up, having fallen asleep on the couch in front of the television, and start to go through my nightly routine. I take the dog out one more time before making sure all of the doors are locked and the alarm is set. Generally, when I go through this routine I’m half asleep which means that sometimes (read-pretty much every night) I forget to turn off the fan in the living room.

Invariably, this leads my Wife to tell me that I need a lesson in consideration . . . if only she knew. In fact, I have taken an entire course on consideration and, as the case below illustrates, it’s not always all that it’s cracked up to be.

Consideration, in the legal sense, is an essential element of a contract in which both parties give something up in order to benefit the other party. For example, if I promise to pay five dollars in exchange for a dozen donuts—the money and the donuts are the consideration. If only one party is giving something up, then what you have is not a contract it’s a gift. This is an important distinction because an agreement to give a gift is generally unenforceable whereas entering into a contract results in a binding promise.

This seems easy enough, and in routine cases it is. But, as with everything in life nothing is as simple as it sounds. That is a lesson which was learned all too well by a fellow named Louis Gail Fiege in one of the first cases they teach in law school (Fiege v. Boehm).

In this case, Hilda Boehm became pregnant out of wedlock and informed Mr. Fiege that he was the father. Rather than go through the shame and embarrassment of a bastardy proceeding (by the way this was 1956); he agreed to pay her expenses as well as ten dollars per week as child support until the child reached the age of 21. Thereafter, he dutifully paid these expenses each week until he was told by a doctor that he was not, and could not be, the child’s father.

When Mr. Fiege stopped paying these expenses, Ms. Boehm took him to court for breach of contract. She alleged that Fiege’s agreement to pay these expenses constituted a legal contract which he could not avoid simply because was not actually the child’s father. This is where the issue of consideration gets a little bit sticky.

In a case which makes law students cringe to this day, the Court ruled in favor of Ms. Boehm and held that, irrespective of the child’s actual paternity; Mr. Fiege was obligated by his agreement to pay child support. The Court found that although he was not the father, he could have been. Therefore, at the time that Boehm waived her right to proceed in a bastardy proceeding she was foregoing a legal cause of action (even if it ultimately would have been a losing cause of action). Giving up this legal right constituted consideration and therefore a contract was born. Based on this contract, Feige was ordered to continue pay support until the child reached the age of 21.

So while my wife might occasionally like me to show a little more consideration . . . Mr. Fiege might just advise against this.