As proposed in section 11.1 “General Outlook”, the exchange of a legal disadvantage and a legal advantage is contractually required; When this happens, it is said that the consideration is legally sufficientsomething of sufficient value to justify a consideration. 7 Lawyers for many OAs issue notices of probable violations, notifications of claims, or letters of complaint to initiate enforcement proceedings. For other OAs, these documents are issued by program officials who are not lawyers. The obligation to review also applies to all Agency counsel, whether they decide to issue an originating document or to prosecute on the basis of a document previously issued by a program manager who is not a lawyer. In the latter case, it is important that lawyers provide legal input, training and verify the results of the program office. DOT lawyers are encouraged at all times to exercise their best professional judgment when deciding to initiate, prosecute or recommend a case in accordance with applicable legal and ethical standards. provide sufficient information to enable the person receiving the communication to act in full knowledge of the facts. Too little information can violate a person`s legal rights. The courts do not question the adequacy of the consideration, but require (with some exceptions) that the promisor suffer a legal disadvantage (the waiver of a legal right he possesses – to renounce something) in order to obtain the negotiated benefit. The waiver of the right of action is a legal disadvantage, and the problem arises when analyzing different types of dispute settlement agreements (agreement and satisfaction): the obligation to pay the full amount that a creditor claims for a liquidated debt, an unliquidated debt and a disputed debt. If unforeseen difficulties arise, a debtor is entitled to additional compensation (consideration) to resolve them, either because the contract has been amended or because the parties have entered into a novation, but no additional consideration is due to someone who fulfills a pre-existing obligation or does not do what he is legally obliged to do. If a promisor makes an illusory promise, he gives nothing in return and no contract is concluded; But exclusivity agreements, demand contracts and service contracts are not considered illusory. An agreement is a contract and must therefore be supported by a counterparty.

Let`s say Jan owes Andy $7,000, due on November 1. On November 1, Jan pays only $3,500 in exchange for Andy`s promise to relieve Jan of the rest of the debt. Did Andy (the Promiser) make a binding promise? He did not do so, because there is no quid pro quo for the agreement. Jan suffered no disadvantage; She received something (exemption from the obligation to pay the remaining $3,500), but she did not give up anything. But if Jan and Andy had agreed that Jan would pay the $3,500 out of $25. I would like to ask the Commissioner whether he is aware that the Commission has not yet presented a proposal for a directive on environmental protection in the Community. Jan would have suffered a legal disadvantage if she had undertaken to make a payment earlier than required by the original contract. If Jan had paid the $3,500 on November 11 and given Andy something else – a pen, a barrel of beer, a peppercorn – the required inconvenience would also have been present. An unforeseen difficulty in the performance of a contract so great that the hypothesis of a modification of the contract is justified. Contracts arising after the conclusion of a contract can also be resolved by agreement and satisfaction. Difficulties that no one could have foreseen can sometimes serve as a catalyst for another promise that seems to be ignored, but is nevertheless enforced by the courts. Let`s say Peter hires Jerry to build a house for $390,000.

During the excavation, Peter unexpectedly discovers quicksand, which will cost an additional $10,000 to remove. To make sure Peter doesn`t hesitate, Jerry promises to pay him $10,000 more than originally agreed. But when the house is finished, Jerry breaks his promise. Is Jerry responsible? Logically, perhaps not: Peter suffered no legal disadvantage in exchange for the $10,000; He had already ordered the contract for the construction of the house. But most courts would allow Peter to rely on the theory that the original contract was terminated or modified, either by mutual agreement or by an implied condition, that the original contract would be performed in the event of unforeseen difficulties. In short, the courts will impose mutual recognition of the parties that unforeseen conditions have rendered the old contract unfair. The parties either amended their original contract (which requires common law consideration) or abandoned their original contract and entered into a new contract (a new contract replacing an old one, or a new party to a contract replacing an earlier part). 6 While it is not always possible or necessary for Agency staff to consult with counsel before initiating an enforcement action, particularly because the ATs devote a large number of law enforcement personnel to their enforcement programs, including on-site staff, The staff of the Authority should ensure that the basis for an enforcement measure is legally sufficient before it is initiated. Let`s say Phil offers George $500 if George quits smoking for a year. Is Phil`s promise binding? Since George presumably benefits by making the deal and sticking to it – his health will surely improve if he quits smoking – how can his act be considered a legal disadvantage? The answer is that there is leniency on George`s part: George has the legal right to smoke, and by not committing to it, he suffers a loss of his legal right to it. This is a legal disadvantage; The consideration does not require any real disadvantage.

In accordance with the Authority`s established procedures, enforcement measures should be reviewed by the relevant component of the Agency to determine their legal sufficiency, in accordance with applicable laws and regulations, court decisions and other competent authorities. 6 If, in the opinion of the responsible body or its defence counsel, there is sufficient evidence to substantiate the allegation of infringements, the authority may execute the enforcement measure. If there is insufficient evidence to support the proposed enforcement action, the Authority may amend or supplement the charges and take enforcement action in accordance with the evidence, or refer the case back to law enforcement officials for further investigation. The reviewing lawyer or body may also recommend that the case be closed due to insufficient evidence. 7 The Department will not take enforcement action such as a “fishing expedition” to identify potential violations of the Act if there is insufficient evidence to support the alleged violation. To repay the liquidated debt of $8,000 to the surgeon, the patient sends a cheque for $6,000 that says “full payment.” The surgeon retrieves it. There is no dispute. Can the surgeon sue for the remaining $2,000? This seems to be an agreement: by cashing the cheque, the surgeon seems to agree with the patient to accept the full payment of $6,000.