Epistemology and Teaching Styles 87condition as he’s stating it here. He’s asking for her to do something
first. “If you do this, I’ll do this.” That’s exchange, that’s starting to look
like exchange, isn’t it? Particularly when he is saying to do something
that will come back to benefit him, something that will come back to
him. So, in an exchange, you are going to always see that, you are always
going to have that type of () be implicit. You do this for me, I’ll do this
for you. But that language alone does not make it in and of itself a
bargained-for exchange, because it could be a situation: “If you do this
for me, I will give you this gift.” In which case it is a condition to
gratuitous transfer. So, it is not the language itself; what we are faced
with is a very difficult characterization problem. What it is really
coming down to is intent (). What lies behind all of this? Gratuitous
intent or bargain intent (). In other words, what must be- in order to
constitute consideration, it has to be sought in a bargaining context. It
must be returned as part of a bargain. That kind of circular statement,
that’s what’s involved. Now sometimes the context is very obvious. Let
me give you a real simple illustration. I tell you, “If you break your leg
in the football game this weekend, I’ll pay you fifty bucks. If you break
your leg in a football game this weekend, I will pay you fifty dollars.”
Now is that a condition of gratuitous promise, or is that a bargained-for
exchange? Um-huh.
Student: It’s a bargained-for exchange.
Prof.: Yeah, I think this is very obvious. [Intonation markers indicate a shift to
a new hypothetical here] I (), at least sometimes. I’m not really bargain-
ing for you to go out there and bust your leg on Saturday. Instead, I am
saying, “Hey look, if you play hard and you get hurt, I’ll (see) you’re
paid something.” But I said, “I’m not going to give you fifty bucks if you
don’t come out with a broken leg either.” I don’t think there is much
question there that that is a (gratuitous) situation subject to condition.
But when I start posing the condition that you have to give something
back with some benefit () me, particularly if it is a direct economic
benefit, now we start looking at things that are much- and of course I ()
with the characterization. Now, what we have here is essentially a
question of fact. A question of fact. And it is somewhat difficult, but I
will introduce the subject for the first time, and within contract
formation analysis we can look at it much more extensively. [Remainder
of 5.05 turn omitted]In this passage, the professor explains and clarifies a legal principle distinguishing
enforceable contractual agreements from gratuitous promises. Along the way, he
applies this principle to several specific fact situations, using examples to demon-
strate the doctrine. The beginning of the excerpt specifically points to a case previ-
ously discussed, involving “thirty-seven years with Mrs. Feinberg.” It contrasts the
situation in that case (where “there is no way to say there is consideration there
and make a plausible argument”) with the situation in the case currently being
discussed (“this one, there’s ways to argue it both ways”). Thus, the passage also
involves application of law to the specific facts of several cases and synthesis of these
cases in terms of an overarching legal principle. (And indeed, the professor moves
on immediately to discuss and apply the facts of the case at hand in more detail.)