'Prove Me Wrong' Cases and Consideration Theory

Abstract

Courts describe a particular category of contract cases as "prove me wrong" cases. These cases involve a promisor promising to pay a specified sum of money to anyone who can disprove the promisor's factual claim. As the description suggests (prove me wrong), the promisor has a stake in the promisor's factual claim being true. In other words, in prove-me-wrong cases the promisor is not promising a sum of money as an incentive for someone to disprove a factual claim that the promisor disbelieves. Rather, the promisor is promising the money to demonstrate the promisor's confidence in the factual claim and to thus give the claim credence. Courts hold that these promises are enforceable unilateral contracts, provided that a reasonable person would believe the promisor was serious and provided that the promisee does, in fact, disprove the promisor's factual claim. This Article maintains, however, that prove-me-wrong promises are usually not supported by consideration and are therefore typically not enforceable as a unilateral contract, even if a reasonable person would believe that the promisor was serious, and even if the promisee disproves the promisor's factual claim. Courts have assumed that there is consideration simply because the promise to pay was conditioned on the performance of an act (disproving the factual claim), thereby making it an offer of a unilateral contract, and have likened the cases to those involving a reward offer (which are clearly supported by consideration). But the focus on the parties' manifestation of mutual assent (the promisee accepting by performance) and cases involving reward offers has caused courts to overlook the requirement that an agreement, to be a contract, must have consideration. And simply because a promise is conditioned on the performance of an act does not mean it has consideration. This Article maintains that prove-me-wrong promises typically lack consideration because the promisor does not desire the promisee to prove the promisor wrong. And because prove-me-wrong promises are usually not given for consideration, whether a prove-me-wrong promise is enforceable should typically depend on whether the requirements of promissory estoppel have been established.

Keywords: Contracts, Consideration

JEL Classification: K12