Npc Contracts Assignment 1
Re: Vivian v Bernie: Mutuality of Consideration
[Facts] On February 1st, Bernie put his 2006 Ford Fusion up for sale. Vivian contacted Bernie on March 1st interested in purchasing his vehicle. Bernie extended an invitation to Vivian on March 5th for them to meet in order to further discuss negotiations. Vivian met up with Bernie at his place of residence on March 10th, they agreed on a purchase price of $12,500. Vivian informed Bernie that she needed an additional three weeks in order to obtain the funds. Bernie agreed to give Vivian until March 31st to purchase the vehicle under the condition that she put down a $1,000 deposit. Vivian agreed to the contract terms written by Bernie as …show more content…
Vivian’s $1,000 deposit was considered consideration on her behave. Bernie’s act of taking the vehicle off the market during the period the contract was held open is not considered consideration, because Bernie would not have suffered any legal detriment by removing the vehicle off the market. If Bernie decided he wanted to back out of the contract he could simply return the deposit to Vivian, put the car back out on the market, and ask for his original asking price. Without losing out on anything on his part, therefore Bernie’s act of not advertising the vehicle for 21days is not an act of consideration by Virginia law. In Busman v. Beeren & Barry Invs. The court found that the argument “that the limitation clause does not destroy mutuality but merely limits…remedy to the recognized measure of damages for a purchaser's breach of a contract for sale of real estate: the return of the purchaser's deposit” To be invalid.
Furthermore, in the American Agricultural Chemical Co. v. Kennedy & Crawford the Virginia Supreme Court found that the contract lacked mutuality of obligation by the parties, because only one of the parties was bound to the contract. “In this case the plaintiff made a proposition to sell, which the defendant accepted, but the plaintiff's offer left it optional with it whether or not it would sell. It did not bind itself to sell.” Also, “As that proposition did not bind the