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Paul Davies. JC Smith's The Law of Contract (2018 2 ed). pp. 75-76.

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Can the two hypotheticals (orange and red) be distinguished? Why's the red a gratuitous promise but the orange an offer to contract?

I can't? Both stipulate £5K/year and the phrase "so long as you remain unmarried" The orange has "Please do not remarry", but this feels superfluous as "so long as you remain unmarried" is already stipulated.

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The idea is that, by default, we should assume the payment is a gift, unless we have specific evidence to suggest that it is offered in exchange for something.

In the first case, the father-in-law has given no indication as to why he is giving her the money. It could be that he is indifferent to whether she remarries or not, and simply wants her to have a steady income in either case. He may be presuming that, if she remarries, her new husband will be able to provide for her, but until such time, he (the father-in-law) will pay her way. We certainly do not have evidence to show that he actually wants her to stay unmarried and is paying her for that purpose.

In the second case, the father-in-law has given us more evidence. His words make it explicit that he does want her not to remarry, and that he is paying her in order to get her not to. Since he is clearly paying money with the intention of getting another party to do something (or in this case, to refrain from doing something), we understand it as a contract.

  • Thanks! How are you so intelligent to excel in math and law! – Chrome Apr 20 at 3:36
  • How is it a contract without acceptance from the other party? – George White Apr 20 at 4:44
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    @GeorgeWhite the acceptance is by conduct by receiving the money – Dale M Apr 20 at 7:27
  • I wonder what the difference would be in practice, since in either case, as soon as she remarries, he stops paying. Would there be a difference between both cases if she secretly remarried, and the payments continue until the truth comes out? – gnasher729 Apr 20 at 17:32
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    @gnasher729: I think the difference becomes relevant if she remains unmarried, but her father-in-law decides to cut off the payments anyway. If it was a gift, she has no recourse. But if it was a contract, then she has held up her end but the father-in-law has not held up his, and she could sue to force him to keep paying. – Nate Eldredge Apr 20 at 21:50

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