AMI 2406 Definition—Consideration
Ark. Model Jury Instr., Civil AMI 2406
Arkansas Model Jury Instructions-Civil
December 2023 Update
Chapter 24. Contracts
Contract Formation
AMI 2406 Definition—Consideration
When I use the term “consideration,” I mean something of value that must be bargained for and given in exchange for a promise.
“Something of value” may consist of a promise—such as a promise to pay money or to perform a service or to deliver goods; an act—such as the payment of money, the delivery of goods or the performance of services; or a forbearance—such as giving up the right to sue, the right to compete, or the right to perform a certain act.
[An act already completed cannot be consideration for a later contract.]
[A promise by a person to do something [he][she][it] already has an obligation to do cannot be consideration for a contract, except where the existence of the duty is the subject of a reasonable dispute.]
NOTE ON USE
Insert the bracketed paragraphs when warranted by the evidence. The second paragraph is designed to be used in nearly every case. However, if there is another specific example of a promise, an act, or a forbearance that should be either added to or substituted for one of the enumerated examples in a particular case, the instruction should be modified.
COMMENT
Consideration is often a difficult concept for a jury to understand. The instruction is in accord with the definition most often cited in Arkansas case law. See Bass v. Service Supply Co., Inc., 25 Ark. App. 273, 757 S.W.2d 189 (1988); McIlroy Bank & Trust Co. v. Comstock, 13 Ark. App. 13, 678 S.W.2d 782 (1984).
This instruction does not address the rare case in which the consideration passes to or from a third party. See John Deere Co. v. Broomfield, 803 F.2d 408 (8th Cir. 1986) (applying Arkansas law).
There must be additional consideration when the parties to a contract enter into an additional agreement. Youree v. Eshaghoff, 99 Ark. App. 4, 256 S.W.3d 551 (2007). Multiple agreements entered into as part of a related set of contracts, however, may not require separate consideration for each agreement. Trakru v. Matthews, 2014 Ark. App. 154 (holding that asset purchase agreement and non-compete agreement could serve as the consideration for an option contract entered into eight days earlier because promises were made as part of a related set of contracts). If, without legal justification, a party to a contract breaks it or threatens to break it and, in order to induce performance, the other party promises to give more than was originally agreed upon, there is no consideration for the new promise because when the party who threatens to break the contract finally performs, he does no more than he was bound in law to do under the original contract. Youree, 99 Ark. App. at 9, 256 S.W.3d at 555.
© 2023 Arkansas Supreme Court Committee on Jury Instructions-Civil
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