No field of law study, certainly none in the first-year curriculum, is richer in leitmotif than is that of contracts. Much of the challenge to the beginning student lies in untangling these recurrent themes, such as bargain, reasonable expectations and reliance, to take but a few. In the following pages I shall attempt to unravel one such theme that is of contemporary significance in the development of contract law-that of mutuality of obligation. The principle of mutuality of obligation can be simply stated: If two parties are to be bound by an exchange of promises, neither one is bound until the other is bound. We are going to look at the erosion of this principle in modern contract law. But first, a little whimsy may provide some insight into the principle itself.
Let your imagination carry you back over a century to Friday, June 12, 1874.
Farnsworth, E. Allan
"Mutuality of Obligation in Contract Law,"
University of Dayton Law Review: Vol. 3:
2, Article 2.
Available at: https://ecommons.udayton.edu/udlr/vol3/iss2/2
E. Allen Farnsworth is Alfred McCormack Professor of Law, Columbia University. B.S., University of Michigan, 1948. M.A., Yale University, 1949. L.L.B., Columbia University, 1952. The writer is not unaware that "mutuality of obligation" is given a somewhat premature burial in Restatement (Second) of Contracts § 81 ("If the requirement of consideration is met, there is no additional requirement of … 'mutuality of obligation.' ").
This is a footnoted and slightly edited version of a talk given to the first-year contracts class at the University of Dayton School of Law at the invitation of the Student Bar Association.