Practice point: Past
consideration is no consideration and cannot support an agreement
because the detriment did not induce the promise. Since the
detriment had already been incurred, it cannot be said to have been
bargained for in exchange for the promise.
There is an exception where the past consideration is explicitly
recited in a writing. To qualify for the exception, the description of
the consideration must not be vague or imprecise, and extrinsic
evidence may not be used to assist in understanding the consideration.
Student note: General Obligations Law (GOL) § 5-1105 states, "A promise in writing and signed by the promisor or by his agent
shall not be denied effect as a valid contractual obligation on the
ground that consideration for the promise is past or executed, if the
consideration is expressed in the writing and is proved to have been
given or performed and would be a valid consideration but for the time
when it was given or performed."
Case: Korff v. Corbett, NY Slip Op 07677 (1st Dep't November 2, 2017)
Here is the decision.
