Huge and obvious imbalance in the agreement may indicate that there is not bargaining

Test is consideration, bargain for exchange

But still have to figure out if a bargain is going on
BFE 71(2) question of fact
Need to figure out if the parties were bargaining or not
Modern approach is that there has to be a real bargain the peppercorn does NOT
work
Apply concerns of enforcing promises to peppercorn case
(1) Evidentiary mistakes
a. Want evidence that a promise was made
b. Want evidence that they actually intended to be bound by the
promise
c. Promisor probably wanted to make an enforceable promise because they
went through with the sham trade in the first place
(2) Cautionary lost promises
a. Realize that they are doing something that they are stuck with
First Restatement not necessarily a bad approach to sham agreements just
hasnt prevailed need to have real bargain, not a manufactured bargain
If we indulge and enforce the sham bargain, then we will likely include a lot of
sham promises, where neither the promisor nor promisee intended the promise
to be performed.

Sweetheard Stadium? Page 41 note 1, Seattle Mariners stadium case

City ------------- use of stadium for 20 years ---------- Seattle Mariners
------- $1/year for 20 years --------------------did the city make that promise in order to make $20 from the Mariners?
Is the $1/year consideration for the promise?

No it is like the peppercorn

How did the WA supreme court say otherwise?
The Mariners promised to play all of their games in the stadium for the
next 20 years city was bargaining for that
Nominal rent condition is a red herring that was NOT the consideration in this case
Feinberg v. Pfeiffer
322 SW2d 163
Pfeiffer ---------- $200/mo retirement pay ------- Feinberg
-------- 37 years of previous service ---no bargain for exchange
only consideration if there is bargain for exchange
cant make it bargain for exchange even if you use the language
Things argued as consideration:
Continued to work for Pfeiffer for an additional 1.5 years after promise
- But promise was not conditioned upon her additional working there
Could condition Ps retirement payment levels on how much future employment
Still consideration on promisees side even if the promise is gravy
As long as it is 1 of the reasons she continues to work
Retirement as consideration?
Company wasnt trying to induce her to retire
Condition on the promise is the first place you look
If the promisor is promising for anything, the promisor will condition that promise on the
thing that they are bargaining for

MC corp says we will give 500$ a week retirement pay if you retire at the end of the
month

At the end of the month, 2000 employees retire. At the end of the month, are they
required to pay the additional retirement pay? Yes.
Did the employees retire to get the additional retirement pay?
Yes. Most likely at least one of the reasons to retire

Kirksey v. Kirksey (1845)

8 Ala. 131
B-I-L ----------- place to raise family -------- S-I-L
Why would there be no consideration?
Essentially they were saying this was a conditional gift promise
He wasnt trying to induce the family to move
Moving near him was incidental to the specific gift he chose to make
Must show that at least one of the reasons why the brother made the promise was to
induce his sister to move to him
Bargain for exchange is a question of fact

Note 2 on page 59
Father --------------- emerald ring -------- daughter
-----------meet him at Tiffanys--looks like both sides of the bargain for exchange requirement are met

Pino ------------ meal at mcdonalds -- homeless guy

----- come to mcdonalds ------

WHEREAS recitals, usually occurs at the top

Language of bargain