Definition
A consideration that has not yet been performed at the time a contract is made but is promised to be performed in the future. When one party makes a promise and the other party's reciprocal promise or act is yet to come, the future performance serves as the consideration for the contract. Executory consideration is thus distinguished from executed consideration, where the consideration has already been fully performed before or at the moment the promise is made.
In practical terms: if A promises to pay B $500 next month, and B promises to deliver goods next week, both obligations remain outstanding at the time of contracting. Each party's unfulfilled promise is executory consideration for the other's. This bilateral structure — mutual executory promises — is the foundation of most commercial contracts.
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Common Confusion
EXECUTORY CONSIDERATION vs. EXECUTED CONSIDERATION: The distinction turns entirely on timing. Executed consideration is past or present performance — something already done. Executory consideration is a promise of future performance. This matters because past consideration (a subspecies of executed consideration that precedes the promise it is meant to support) is generally not valid consideration at common law. A researcher who conflates executed with executory consideration risks misreading whether a historical court found a contract enforceable on consideration grounds.
EXECUTORY CONSIDERATION vs. PAST CONSIDERATION: Past consideration is a failed form of consideration — something done before any promise was made, offered retroactively as the basis for a new promise. Executory consideration, by contrast, is a present promise to perform in the future and is perfectly valid. Historical sources sometimes blur this line; read carefully.
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Core Elements
For executory consideration to support an enforceable contract, courts historically required:
1. A PROMISE OF FUTURE PERFORMANCE: The consideration must consist of a genuine commitment to act (or refrain from acting) after the contract is formed — not a recitation of something already done.
2. MUTUALITY (IN BILATERAL CONTRACTS): Where both parties exchange executory promises, both must be bound. An illusory promise — one that leaves performance entirely to the promisor's discretion — does not constitute valid executory consideration.
3. LEGAL SUFFICIENCY: The promised future performance must be something the promisor was not already legally obligated to do (the pre-existing duty rule), and it must have some legal value, however nominal.
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Why It Matters in Research
Executory consideration is the operative mechanism behind bilateral contracts — the dominant form of commercial agreement — so it appears constantly in contracts litigation across every era. Several research traps are worth flagging.
First, historical courts and treatises were inconsistent about whether executory consideration alone could sustain an action before any performance had begun. Early common law courts, particularly in assumpsit, sometimes required some part performance before suit could be brought. When reading 18th- and 19th-century cases, check whether the court's analysis depends on partial execution of the consideration, not merely the promise.
Second, the term appears in equity contexts as well as common law ones. Courts of equity occasionally treated executory consideration differently when assessing whether specific performance should be granted, particularly in land contracts where one side had partially performed. The equitable doctrine of part performance intersects here in ways that can muddy a straightforward contract analysis.
Third, researchers working in the Law Mind corpus will find executory consideration discussed alongside adequacy of consideration. Courts and commentators repeatedly noted that executory consideration need not be adequate in value — a promise to perform a trivial act can support a large one — but the promise must be real and not illusory. The encyclopedia entry on adequacy of consideration develops this point directly.
Fourth, do not confuse the executory consideration framework with executory interests in property law. The word "executory" appears in both contract and property contexts with related but distinct meanings. A property researcher following the term across a historical corpus must confirm which domain is in play.
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Historical Dictionary Support
All three source dictionaries align on the core definition: executory consideration is consideration to be performed after the making of the promise it supports. Black's, Bouvier's, and Burrill's are in close agreement, and the brevity of their entries reflects the term's conceptual simplicity within a well-settled doctrine.
Burrill adds the most texture, citing 2 Stephens' Commentaries at page 113, which grounds the definition in a recognized treatise authority. This citation is useful for tracing the doctrine into mid-19th-century English law, though researchers should confirm the specific edition of Stephens' Commentaries in use, as pagination varies across editions.
Bouvier's characteristic framing — "the legal equivalent" of the promise it supports — is worth noting. This language gestures toward the consideration doctrine's requirement of legal, not merely moral or sentimental, value, and hints at the adequacy question without resolving it.
What the historical dictionaries do not address: the tension between executory consideration and the pre-existing duty rule, the illusory promise problem, and the doctrinal shift in 20th-century American contract law (particularly under the Restatement framework) that expanded enforceability through promissory estoppel and reliance — doctrines that sometimes substitute for, or supplement, classical executory consideration analysis. Researchers working in post-1930s American sources should keep these developments in view.
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Jurisdictional Note
The basic doctrine of executory consideration is uniform across common law jurisdictions. Meaningful variation arises in how courts handle illusory promises, output and requirements contracts, and conditions on executory promises. UCC Article 2 modifies classical consideration rules for goods contracts in ways that affect how executory promises are analyzed in commercial sales disputes.
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Encyclopedia Cross-Reference
Contracts — Adequacy of Consideration and Nominal Consideration (The Law Mind Contracts & Commercial Law Encyclopedia)
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