Contract Law: The Pre-Existing Duty Rule

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The pre-existing duty rule is a corollary to the requirement of consideration. Because consideration that makes contracts enforceable must be “bargained for,” consideration cannot consist of performance that the party had a pre-existing duty to perform. If the party was legally required to do something in any case, then agreeing to do that very thing is not new consideration that needs to have been “bargained for” by the other party. Therefore, a party’s offer of a performance already required under an existing contract, employment term or law is insufficient consideration for a new contract or the modification of an existing contract.

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