Past Consideration

This topic has 5 replies, 2 voices, and was last updated 8 years ago by MikeLittle.

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October 25, 2013 at 7:56 am #143636
Birte
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I understand the principal of past consideration, however found myself questioning several scenarios whilst watching the online lecture (which is fantastic, as it’s very engaging!). One scenario would be an unpuplished author, authors write stories and once they are complete (if they are unknown) will submit their ‘books’ to puplishers. In order for a contract to be established would the author have to offer exclusivety of their story? Seeing as the story/book was already written and complete before a contract would have been entered? Sure in some cases the puplishers will request for changes to be made to the story prior to puplishing but you can also have the scenario where the story will be printed as is.
The same goes for freelance journalists for example – they will research and write about a topic they feel the puplic will be interested by and then offer it to several newspapers. In this scenario I know that often several papers will print the article (granted often with slight variation due to the amount of space the newspaper wants to fill) but still the same article. Is the consideration from the author giving the ok for the particular puplisher/paper to print the story? Seeing as the author/journalist has already written the story/article?

Appreciate help on this one.

Thank you 🙂
October 26, 2013 at 12:18 pm #143750
MikeLittle
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I’m sorry – I thought that I had answered this from my iphone in the airport waiting room!

The “writing” is not part of the contract at all. The author / journalist is inviting the publisher to make an offer to the author. The publisher now says for example “I’ll offer you $300,000 for the right to publish the book”

The author thinks about it and may accept or may negotiate a better price by way of counter offer.

Eventually, after offer and counter offer, a mid-price is agreed, say $400,000 and the publisher publishes

But nowhere is the book itself seen to be the subject matter of the contract – the contract is about the right to publish.

If you think about it, any contract for any manufactured item or created item involves the item already having been created.

If I go the garage and say to the car sales person “I want to buy a car” the car I buy has already been made. That doesn’t therefore mean that it’s past consideration

OK?
October 27, 2013 at 5:57 pm #143852
Birte
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Thank you for the detailed response – that does make sense. Sorry for being a pain, but now I am questioning an example you used in the lecture. Re you could not have a contract/an agreement and let an institution/ a different tutor use the learning material that you typed up and be paid for them as you had already created them? Could you not also sell them? If you offered the institution/ tutor the right to use the learning material?

Thank you
October 27, 2013 at 6:02 pm #143854
MikeLittle
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We certainly do – in fact, if your own university or teaching provider wishes to use the opentuition notes, all they need do is contact admin and arrange a suitable negotiation. There are already a couple of universities that are doing this
October 27, 2013 at 8:45 pm #143885
Birte
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Great, thanks 🙂 and also thanks for the speedy reply. Really appreciate the help.
October 28, 2013 at 5:20 pm #143952
MikeLittle
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You’re welcome
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