Definition
Executed consideration is a form of contractual consideration that has already been fully performed or given before the promise it purports to support is made. The act, forbearance, or value constituting the consideration is entirely in the past at the moment the promisor's promise is given.
This distinguishes executed consideration from executory consideration, in which the consideration is a promise of future performance, and from present consideration, in which the exchange is simultaneous. With executed consideration, the sequence runs: (1) one party acts, then (2) the other party later promises something in return for that prior act.
The central legal consequence is that executed consideration is generally insufficient to support a binding contract under common law. A past act cannot, as a rule, serve as legal consideration for a subsequent promise because consideration must be given in exchange for the promise — a bargained-for exchange. If the act was already complete before the promise was made, it was not induced by the promise and therefore fails the bargain element.
Exception — Prior Request Doctrine: The rule against past consideration yields where the prior act was performed at the promisor's request, and the circumstances were such that payment or a return promise was reasonably contemplated. In that case, a subsequent express promise to compensate may be enforceable. The leading formulation requires: (a) the promisee performed the act at the promisor's prior request, and (b) the parties understood at the time that compensation would follow.
Common Confusion
EXECUTED CONSIDERATION vs. PAST CONSIDERATION: These terms are used interchangeably in most sources and describe the same concept. "Past consideration" is the more common modern label. Some older authorities used "executed consideration" with a broader meaning — covering any consideration that has been fully performed, including performance completed simultaneously with or during the contract's life rather than strictly before the promise. Researchers should read the source carefully to determine whether an older use of "executed consideration" means strictly past-act consideration (insufficient to support a new promise) or more broadly means consideration that has been rendered (as distinguished from promised but unperformed). Conflating these meanings produces false results in doctrinal research.
EXECUTED CONSIDERATION vs. EXECUTORY CONSIDERATION: These are opposite categories. Executory consideration consists of a promise to do something in the future and is fully sufficient at common law. Confusion arises because "executed" in contract law generally signals completion, which courts have treated as a virtue in performance contexts — but in the consideration context, execution before the promise is the very defect that defeats enforcement.
Core Elements
For the prior-request exception to redeem an otherwise past/executed consideration, the following elements are typically required:
1. Prior Request: The promisee's act was performed at the express or implied request of the promisor, not voluntarily or as an officious intervention.
2. Expectation of Remuneration: The circumstances at the time of the act indicated that compensation or a return promise was understood to be forthcoming.
3. Subsequent Express Promise: The promisor later makes an explicit promise to compensate for the prior act.
All three elements are generally required. Without the prior request, the subsequent promise is unsupported and unenforceable as a bare moral obligation.
Why It Matters in Research
Researchers navigating contract disputes in historical sources will encounter "executed consideration" frequently in nineteenth- and early twentieth-century case law, where the term was not yet fully standardized. Courts sometimes used it to mean past consideration (the modern technical sense), and sometimes to mean consideration that had been fully performed under an existing contract — a usage now largely displaced by "executed contract" language instead. This semantic overlap can generate misleading results when searching digests or case reporters.
The prior-request doctrine is a critical research thread. Courts that reject a past-consideration argument often do so without acknowledging the exception; courts that enforce past-act promises often do so without expressly labeling the doctrine. Researchers should look for both the rule and the exception in any given jurisdiction before concluding that past consideration was or was not a bar.
The inadequacy of executed consideration connects directly to the broader architecture of bargain theory in consideration doctrine. Cases involving moral obligation, material benefit, and promissory estoppel often arise precisely because executed consideration failed, and courts sought alternative grounds for enforcement. A finding that consideration was "executed" in the defeating sense is frequently the doctrinal gateway into these alternative theories.
In equity, past consideration has occasionally been treated more generously. Equity courts have sometimes enforced promises based on past acts under doctrines of unjust enrichment or restitution, even where the common law consideration analysis would fail. Research crossing law and equity must account for this divergence.
Historical Dictionary Support
Black's defines executed consideration economically as "a consideration which is wholly past" and "an act done or value given before the making of the agreement," citing Parsons on Contracts. This formulation captures the temporal core without engaging the prior-request exception.
Burrill provides the most instructive treatment among the shelf sources. He defines it as "a consideration performed prior to the promise upon which it is founded" and adds the critical qualifier: to be valid, it "must have been at the precedent request of the promiser." Burrill's illustration — the bailment of a servant at the master's prior request, followed by the master's subsequent promise of indemnity — is the canonical example that tracks through Stephen's Commentaries and appears across jurisdictions. This is the clearest historical statement that executed consideration is not categorically void but conditionally recoverable.
Rapalje & Lawrence tracks Burrill's example closely and appears to have been building toward the same qualification (the entry is truncated in the available text), suggesting the prior-request doctrine was well-settled doctrine among nineteenth-century reference compilers.
Bouvier declines to define the term independently and redirects to the general CONSIDERATION entry — a choice that, while unhelpful to the researcher looking for the specific doctrine, reflects Bouvier's organizational preference for consolidating consideration subtypes rather than treating them as freestanding concepts.
None of the historical sources engage the restitutionary alternative or the relationship between executed consideration and promissory estoppel, both of which became significant in twentieth-century doctrine. Researchers should not treat the historical dictionary entries as complete statements of modern law on this point.
Jurisdictional Note
The prior-request exception is recognized in most common law jurisdictions but applied with varying strictness. Some American courts have relaxed the requirement of an express prior request, finding the exception satisfied by implied request or strong moral obligation combined with material benefit. English courts have historically applied the prior-request requirement more strictly. Researchers should not assume uniform application across jurisdictions.
Encyclopedia Cross-Reference
The Law Mind Contracts & Commercial Law Encyclopedia — Contracts: Adequacy of Consideration and Nominal Consideration (contracts_7)