Whatever its original historical purposes, and if apparently arkan, the doctrine of consideration serves still useful purposes. It provides objective evidence of the existence of a contract; it distinguishes between opposable and unenforceable good business; And it is a cheque against hasty, thoughtless measures, against thoughtless promises. Lon L. Fuller, “Consideration and Form,” Columbia Law Review 41 (1941): 799. The UCC allows one party to give without consideration a right or right arising from an alleged violation of the other party. This objective is achieved by giving the other party a waiver declaration signed in writing with an informed election, waiving the otherwise available right of appeal. or WaiverA formal refusal of something, as a contract. Unique Code of Trade, Section 1-107. This provision applies to any contract submitted to the UCC and is not limited to the sale provisions of Article 2. In an exclusive contractA contract – as between the buyer and the seller – in which the parties agree only to deal with each other, one party (the franchisor) promises to deal exclusively with the other party (the franchisee) – for example, a franchisor designer agrees to sell all of its specially designed clothing to a particular store (the franchisee). In return, the shop promises to pay a certain percentage of the sale price to the designer. On closer inspection, it may seem that the store`s promise is illusory: it only pays the designer if he manages to sell clothes, but she cannot sell any of them.
The franchisor may therefore attempt to withdraw from the agreement by arguing that, because the franchisee is not obliged to do anything, there is no consideration for her promise to look after the store exclusively. Consideration consists of two elements. The first, as we have just said, is whether the promised person has suffered legal harm – has given up something, paid a “price”, whereas, for example, it may be the promise to do something, like painting a house. (Some courts – although a minority – believe that a negotiated legal benefit is sufficient for the promisor.) The second element is whether the legal disadvantage has been negotiated: does the promisor expressly intend to act, leniency or promise in return for its promise? If we apply this two-track test to the three examples cited at the beginning of the chapter, we can easily understand why, in the second case, it is sufficiently taken into account only from a legal point of view. In the first case, Lou suffered no legal harm; he did not commit to act or act, he did not really act or departed from the dramatic art. In the third example, what appears to be such a promise is not really the case.