Is a hypothetical promise enforceable?

By Adam Keilen

Short answer. Generally, no.

In contract law, an illusory promise is unenforceable due to indefiniteness, or lacking mutual obligation. For example, owner of a business forms an agreement to “pay for products if he feels like it.” Such promises are illusory because they merely hold the illusion of a contract – generally, courts won’t enforce them.

Under the Restatement (Second) of Contracts § 77, a promise is not consideration if by its terms the promisor reserves a choice of alternative performance (or none at all), unless the alternatives were contemplated by the parties, or other exceptions apply.

In plain English. Generally, hypothetical promises are not enforceable contracts; they lack adequate consideration (meaning, they lack the requisite “this for that”). In other words, optional promises don’t count because there is nothing promised in return.

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