Marmer v. Kaufman - No. 09-P-669, 2010 Mass. App. Unpub. LEXIS 225 (App. Ct. Mar. 5, 2010)

Rule:

The mere presence of some incident to a contract which might under some circumstances be upheld as consideration for a promise, does not necessarily make it the consideration for the promise in that contract. To give it that effect it must have been offered by one party and accepted by the other as one element of the contract. Thus, the reciprocal exchange of benefit and detriment constitutes consideration. Fulfillment of a moral obligation, alone, is insufficient. 

Facts:

The superior court judge granted defendant Richard D. Kaufman’s, administrator with the will annexed of the estate of June S. Marmer (decedent), motion for summary judgment. The judge ruled that the alleged agreement between plaintiff Paul J. Marmer and defendant lacked consideration, therefore, it was no more than a gratuitous and unenforceable promise. On appeal, plaintiff argued that consideration was a jury question, that the tax benefit to the estate constituted bargained-for consideration, and that the restoration of family harmony between plaintiff and the decedent's children that would result from the payment to the former should be recognized as valuable consideration. 

Issue:

Did the judge err in holding that the alleged agreement between the parties lack consideration?

Answer:

No.

Conclusion:

The court held that the summary judgment record established that defendant’s promise to pay plaintiff was a gratuitous undertaking, unsupported by consideration, and therefore not binding. Accordingly, the court ruled that the judge properly entered summary judgment in defendant's favor on plaintiff’s claim for breach of contract and because the latter’s complaint also sought a declaration of the rights of the parties under G. L. c. 231A, the judgment was modified to include a declaration that the alleged agreement between the parties was unenforceable for lack of consideration. As so modified, the judgment was affirmed.