Consideration in contract law is the value or benefit given by each party in exchange for the other party’s value or benefit—such as money in exchange for products or services, or mutual promises exchanged.
Consideration is often referred to as the bargained-for exchange in which one consideration is exchanged for another consideration.
A mere promise to do or refrain from doing something that lacks consideration in the form of a value or benefit provided by the other party (a return promise) is not a contract and is generally not enforceable. One exception to this rule may be if one party promises to do or refrain from doing something, and the second party relies on that promise to its detriment (by spending money, for example), the detrimental reliance may create an enforceable contract.
And if the consideration for a contract is so insubstantial that it is worthless, the contract is said to be illusory and is not enforceable.
The existence of consideration is what distinguishes an enforceable contract from a promise to make a gift. Because a gift is a voluntary, gratuitous transfer of property from one person to another—without something of value promised in return—the failure to fulfill a promise to make a gift is not enforceable as a breach of contract, as there is no consideration for the promise to make the gift.
In Texas, as in other states, consideration is a fundamental element of a legally binding contract. Consideration refers to something of value that is exchanged between parties when entering into a contract. It can be money, services, goods, or a promise to perform or refrain from a certain action. The consideration must be clear, present, and legally sufficient; it cannot be something that has already been provided or an action that one is already obligated to do by law. If a contract lacks consideration, it may be deemed unenforceable. However, Texas recognizes the doctrine of promissory estoppel, which means that if one party makes a promise and the other party relies on that promise to their detriment, the promise may be enforceable even without consideration. This is to prevent injustice due to the relying party's reasonable assumption that the promise would be fulfilled. An illusory promise, where the consideration offered is so insignificant as to be non-existent, will not support a contract in Texas. Lastly, promises to make a gift are not enforceable as contracts because they lack consideration; such promises are typically seen as gratuitous and do not carry the legal weight of a contract.
