Also known as: forbearance-to-sue · forbearance
Written by attorneys · grounded in primary & secondary sources — see below
A performance consisting of refraining from asserting a legal claim against another party. The forbearance supplies consideration for a return promise when the claim is valid or when the claimant reasonably and in good faith believes it to be valid. The same forbearance can also support enforcement of a promise under promissory estoppel when the promisor should reasonably expect it to induce the forbearance and injustice can be avoided only by enforcement.
Fidelity Trust held a matured note against Franklin Foundry. Franklin's owner promised to pay an additional sum if Fidelity Trust refrained from filing suit for six months. Fidelity Trust held off filing. When Franklin later refused the extra payment, the forbearance supplied the consideration that made the new promise enforceable.
Felix Franco sold his bakery and bought a building after Red Owl executives repeatedly assured him a franchise would be granted once he met listed conditions. Franco forbore from pursuing other business opportunities. When the franchise was denied, the forbearance supported enforcement of the promise under promissory estoppel.
Select any source to read its text and confirm it supports the definition.
William Story promised his nephew $5,000 if the nephew refrained from drinking, smoking, swearing, and gambling until age twenty-one. The nephew forbore from those activities for the full period. When the uncle's estate refused payment, the forbearance constituted valid consideration even though the nephew suffered no economic loss.
Star Paving submitted a paving bid that Drennan used in calculating his own prime bid. After Drennan was awarded the prime contract, Star attempted to revoke. Drennan's forbearance from seeking substitute bids supported enforcement of the subcontract price under promissory estoppel.
Yes. Even if the claim is invalid, forbearance supplies consideration when the claimant reasonably and in good faith believes the claim to be valid.
A promise that reasonably induces forbearance from suing becomes enforceable if injustice can be avoided only by enforcement, even without a writing that satisfies the statute of frauds.
No. Forbearance supplies consideration only when the claimant holds a legal right to sue that is being relinquished. A time-barred claim supplies no such right.
Only if the promisor sought the forbearance in exchange for the promise. A promise framed as a mere courtesy does not create the required bargained-for exchange.
…of Restatement, 1 Contracts, provides (at p. 110): “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the…