MBE Rules · Contracts
Modification — common law
The rule
At common law, a contract modification requires new consideration on both sides. Exceptions: (1) unforeseen difficulties making performance substantially more burdensome, (2) rescission and new contract, (3) modification of a contract not yet fully performed by either side (in some jurisdictions).
In plain English
To change a contract under common law, both parties need to give something new or different unless there's a big unexpected problem or the original contract isn't fully completed yet.
Worked example
The buyer and seller agree to change the delivery date of goods because a natural disaster delayed shipping. This unforeseen difficulty allows the modification without new consideration.
Memory hook
Modify Means More: Need New Consideration. Common law demands both parties bring something new to the table for a valid modification.
The trap
Students think: mutual agreement is enough. Wrong, because new consideration is needed. The actual test is whether something new is exchanged by both parties.
How examiners test it
Test setup: parties agree to change terms, but only one side offers something new. Trap: assuming agreement alone suffices. Focus on whether both sides provide new consideration.
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