American Contract Law for a Global Age, 2017a

We conclude that the territory encompassed in the Monclova-Maumee-Toledo
JEDZ remains a part of Monclova Township. As such, the occupiers of property within
the zone are entitled to the same governmental services provided elsewhere in
Monclova Township. Moreover, the Monclova Township Trustees have the same duty
to provide usual and customary governmental services in the JEDZ as they do
elsewhere in the township.
As a result, the Trustees of Monclova Township have a pre-existing legal duty
to perform governmental services within the JEDZ, which are the same services that
they have contracted to provide to the JEDZ in return for compensation.
“Performance of a legal duty owed to a promisor which is neither doubtful nor the
subject of honest dispute is not consideration.” Restatement (Second) of Contracts §
73 (1979). Consideration is an essential element of any contract, without which there
is no contract.
As a matter of law, Monclova Township has a duty to provide usual and
customary governmental services in the JEDZ. Since the contract between the
township and the JEDZ is premised on the consideration of the township performing
services that it is already legally obligated to provide, the contract fails for want of
consideration.
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Review Question 2. The case described what contract law calls the
“preexisting duty rule,” which you can find in section 73 of the Second Restatement.
Promising to do something that you already have a duty to do—or, on the flip side,
promising not to do something you have no right to do—is not consideration. Does
that rule make sense to you or is it preventing useful contracts from being formed? If
someone wants to promise you more to make sure you obey the speed limit or don’t
do dangerous drugs, why shouldn’t the law enforce a promise to do so?
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SCHNELL v. NELL
Supreme Court of Indiana
17 Ind. 29 (1861)
PERKINS, J.
Action by J. B. Nell against Zacharias Schnell, upon the following instrument:
This agreement, entered into this 13th day of February, 1856,
between Zach. Schnell, of Indianapolis, Marion county, State of
Indiana, as party of the first part, and J. B. Nell, of the same place,
Wendelin Lorenz, of Stilesville, Hendricks county, State of Indiana, and
Donata Lorenz, of Frickinger, Grand Duchy of Baden, Germany, as
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122 CHAPTER III: CONSIDERATION