We’ve already talked about how someone may be liable to pay when they did not make a promise to pay. Here, we will be discussing when someone may be liable to pay after making a promise to pay but failing to do so because performance may be considered “past consideration”.

Mills v. Wyman

20 Mass. (3 Pick.) 207 (1825).

Wyman is the defendant. Won in trial court.


Does Wyman have to pay for the promise he made to cover the debts incurred by his non-dependant son?


“Moral obligation is a sufficient consideration for an express promise, is to be limited in its application, to cases where at some time or other a good or valuable consideration has existed.”

In other words, one may have a moral obligation for past consideration.


No, there was no legal or moral consideration and he does not need to pay.


A 25 year old boy, who had left home, became ill and was taken care of by the plaintiff until he passed. The father of the boy heard of this kindness and wrote to the plaintiff promising to pay for the expenses occurred in the process of caring for his son. However, he took back his promise and the plaintiff sued.


There is a moral obligation to pay for past consideration. However, the father here is not liable for the debts of his son. Meaning, the son was not a member of the household any longer and the father does not need to pay for those debts. Had it been the father who had taken ill, and recovered due to the kindness, then failed to pay after promising to do so, then there is a moral obligation to pay for that past consideration. Here though, the son was the one who incurred the debt and the father has no obligation to take on that debt.


Moral obligations can be inferred for past considerations.

There may be legal obligations by statute to pay debts that have been barred by the passage of time (missed the statute of limitations) or bankruptcy. Finally, parents have an obligation to pay debts incurred by minors.

Doctrine adopted in §82 restatement (2d) contracts.

Additional Notes

A verbal promise without consideration is not enforceable. Here, we have an agreement where the person is bound to pay morally, not legally. This means that there are times when people get away with things that are not alright on a moral level, but can’t be enforced legally.

There are some exceptions to this rule though:

  1. A parent has a moral obligation to care for a minor.

Webb v. McGowin

27 Ala. App. 82 (1935).

Plaintiff, Webb, lost to demurrers and appealed.


Does the estate of McGowin have a continued obligation to pay for a promise made for past consideration?


When there is a material benefit, not a gratuitous benefit, a subsequent promise from that benefit is enforceable.


Yes, there was adequate consideration and there is an obligation to fulfill the promise.


Webb was working on the second floor of a mill. Standard practice allowed him to throw 75 pound bricks off of the landing to the lower floor. He began to do so when, at the last moment, he discovered McGowin was under the landing where the brick would have landed. He threw himself off with the brick so as to divert it from its current course. Webb was successful in saving the life of McGowin at the cost of sustaining several injuries. For this, McGowin promised to pay Webb $15 dollars every other week for the rest of Webb’s life. These payments continued from 1925 to 1934 when McGowin passed and the estate did not continue the payments. Webb sued.


The argument is whether there was sufficient consideration for the payments to continue. Here, there was sufficient consideration because there was a moral obligation that arose from the actions. Webb saved McGowin’s life. For which he promised to take care of the injuries sustained by Webb. In other words, there was a benefit to the promisor and a detriment to the promisee. This is consideration, and there is a moral obligation to live up to a promise made regarding that consideration.


§86 restatement (2d) contracts.

Additional Notes

There was no actual contract here. The court is acting under the presumption that there was a material benefit and agreement for that material benefit.

What are the better ways to do this? You can form a legitimate contract. Provide adequate consideration for the payment. Another way of doing this is to turn this into a gift (put this in a trust).


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Fall, Contracts I

Will Laursen

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