1. In the June 2005 agreement, what consideration did Amber offer in exchange for Frederick’s granting her a half-interest in the property?

2. Is love and affection alone consideration for a contract?

Amber Williams and Frederick Ormsby lived together in a nonmarital relationship in a house deeded to Ormsby in 2004. The couple separated and attended couples counseling. Amber refused to move back into the house unless Frederick granted her a one-half interest in the property. On June 2, 2005, they signed a document purportedly making themselves equal partners in the home. Amber ended the relationship in September 2007, and she sought specific performance of the June 2, 2005, contract giving her a half-interest in the property. Frederick defended that “love and affection is insufficient consideration for a contract.” The trial court determined that the agreement was not supported by consideration but was reversed by the court of appeals. The state supreme court voted to hear the case.

JUDICIAL OPINION

LANZINGER, J.…

Distinction Between Contract and Gift

The trial court concluded that the June 2005 agreement was nothing more than a written gratuitous promise because there was no consideration for that agreement. In fact, the requirement for consideration is what distinguishes a contract from a gift. The essential elements of an inter vivos gift are (1) an intention on the part of the donor to transfer the title and right of possession to the donee, (2) delivery by the donor to the donee, (3) relinquishment of ownership, dominion, and control over the gift by the donor, and (4) acceptance by the donee. Therefore, a gift is a voluntary transfer by the donor to the donee without any consideration or compensation.

Even if we were to construe the June 2005 agreement as a promise to make a gift of one-half interest in the property, we must still examine whether there is consideration, because even a written promise to make a gift is not binding on the promisor if the promise lacks consideration.…

The June 2005 Agreement

With respect to the … document, signed in June 2005, the trial court found that the writing was not a valid contract, because there was no consideration to support it. The June document … stated that “for valuable consideration,” the parties agree that although titled solely in Frederick’s name, the house was owned jointly by Frederick and Amber and that they were equal partners. In addition, Amber’s name would be placed on the deed at a time she specified, and she could file a lien against the house for her share of the property until it was retitled. This writing required Frederick to pay all expenses on the property, including taxes and insurance. If the house was sold, Amber and Frederick would divide the proceeds from the sale after expenses were paid. Finally, if their relationship ended and they chose not to sell the house, Frederick could elect to keep the house and pay Amber for her share of the property or to leave the house to Amber after being paid for his share.…

Love and Affection Are Not Consideration for a Contract … [W]e conclude that our decision in Flanders v. Blandy, 12 N.E. 321 (1887), is instructive on whether moving into the home with another while engaging in a romantic relationship is consideration for the formation of a contract. In Flanders, a father had intended to give his daughter certain bonds worth $2,000 in addition to interest. But the daughter did not receive the bonds as a gift, because they were never delivered to her. Her father then delivered to her a written promise to pay her $2,000 with interest in lieu of the bonds. Upon her father’s death, the daughter sought to enforce the written promise, but we held that her father’s promise to give her the value of the bonds was not enforceable as a contract, because that promise lacked consideration.

We stated that a gift required a transfer to take effect “for the reason that, there being no consideration therefor, no action will lie to enforce it.” Id. And we continued to explain why the father’s written promise would not be enforced: “[a]n agreement to give for the consideration of love and affection, whether the gift is to be of goods and chattels or of a chose in action, neither transfers the property to the donee, nor secures him a right by suit to compel a completion of the contract.” (Emphasis added.) Thus, for more than a century, love and affection alone have not been recognized as consideration for a contract.… …………………………………………………..