Also known as: promise of alternative performance · promises for alternative performances · alternative performance promises · alternative performances
Written by attorneys · grounded in primary & secondary sources — see below
A contractual commitment in which the promisor reserves the right to select among two or more alternative performances. Such a promise supplies consideration only when each alternative would itself constitute consideration if bargained for alone or when one alternative supplies consideration and a substantial possibility exists that events will eliminate the non-consideration alternatives before the promisor chooses.
Metro Properties offered Apex Studios either a $1,000 monthly rent reduction or four free reserved parking spaces at Metro's option if Apex renewed its lease early. Apex executed the renewal. When Metro later refused both benefits, Apex sued for breach. The court enforced the promise because each alternative would have been valid consideration if promised alone.
Riverbend Clinic promised Dr. Ana Lopez either a $250,000 annual salary or a year of rent-free use of its facilities if she resigned her hospital position and relocated. Dr. Lopez performed. When the clinic later disputed enforceability, the court upheld the contract because each alternative performance would independently have supplied consideration.
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Prairie Grain promised Lopez Farm either to purchase its entire wheat crop at $6 per bushel or to permit storage at its facility as space permits if export prices fell. Both parties knew regulatory rules would likely block private storage in that event. When prices plunged and Prairie refused both options, the court found consideration because the purchase alternative supplied consideration and regulatory events created a substantial possibility of eliminating the storage alternative.
A promise of alternative performances supplies consideration when each alternative would itself be consideration if bargained for alone or when one alternative supplies consideration and events may eliminate the non-consideration alternatives before choice.
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A promise is illusory when the promisor can choose an alternative that requires no legal detriment, leaving the promisor free to perform or not perform at will.
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Section 77(b) validates the promise when one alternative supplies consideration and a substantial possibility exists that events will eliminate the non-consideration alternatives before the promisor chooses.
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Past practice does not override explicit terms granting unfettered discretion. The written promise controls whether each alternative independently qualifies as consideration.
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