Revisiting “Good and Valuable Consideration”

In 2015 I did this post about the phrase good and valuable consideration. Well, I underestimated how stoopid it is.

Here’s an example of a traditional recital of consideration:

NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:

I discuss in MSCD and in this 2015 article broader issues raised by the traditional recital of consideration. But what about good and valuable consideration? Here’s how a Georgia statute (Ga. Code Ann. § 13-3-41) explains the distinction:

Considerations are distinguished into “good” and “valuable.” A good consideration is such as is founded on natural duty and affection or on a strong moral obligation. A valuable consideration is founded on money or something convertible into money or having a value in money, except marriage, which is a valuable consideration.

Referring to both good consideration and valuable consideration is an example of needless elaboration. (It’s like saying fresh-water fish and salt-water fish—just say fish!) Just referring to consideration would serve the same function more concisely. Nothing is riding on the distinction, not even in Georgia, where a recital of consideration (as opposed to actual consideration) is sufficient for a deed to be valid. And no one ever stops to consider whether a transaction involves both good consideration and valuable consideration, instead of one or the other. (One wonders what proportion of business contracts are “founded on natural duty and affection or on a strong moral obligation”!)

Instead, good and valuable consideration is copy-and-paste incantation. Because it’s part of the bundle of obscurity that is the traditional recital of consideration, readers ignore it and drafters are reluctant to delete it.

While we’re at it, how about receipt and sufficiency? Acknowledging receipt accomplishes nothing if there was no consideration. And consideration either exists or it does not exist—it makes no sense to say it’s insufficient or sufficient. See 1-3 Murray On Contracts 60[A].

The legalistic mind likely responds well to good and valuable and receipt and sufficiency considered together—the paired doublets establish a rhythm, enhancing the incantation. But they’re preposterous—delete them.

Once you dispense with everything else that’s useless in the traditional recital of consideration, you’re left with a simple lead-in to the body of the contract: The parties therefore agree as follows.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.