The plaintiff bought 4,200,000 shares from a company called fu chip. under the terms of that agreement,
Question:
The plaintiff bought 4,200,000 shares from a company called fu chip. under the terms of that agreement, the plaintiff promised fu chip that it would not resell more than 60 percent of those shares within one year. resale of a larger number of the shares would hurt fu chip’s financial situation.
the plaintiff later realized that it might suffer a financial loss itself if, for some reason, the value of the shares dropped. it would be required to hold on to the shares while their value declined. the plaintiff therefore approached the defendants, who were the majority shareholders in fu chip and persuaded them to enter into a separate, indemnification contract.15 the plaintiff promised to honour its earlier sale contract with fu chip, and the defendants promised to compensate the plaintiff for any loss that it suffered as a result.
as feared, the value of the shares dropped and the plaintiff demanded indemnification under its contract with the defendants. the defendants argued that the indemnity agreement was unenforceable because the plaintiff could not use the same promise (not to resell the shares) for two different contracts—first the sale contract with fu chip, and then the indemnity contract with the defendants. the court disagreed. the plaintiff was allowed to use a single promise to support two different agreements.
do you think that there was a clear intention to create legal relations such that the court felt compelled to “create” consideration notwithstanding that the consideration here was past consideration?
we discussed that consideration must flow between the parties. so how is it that consideration already given in the formation of one contract can be used to sustain a second, or subsequent contract?