December 4, 2015
The ‘nudum pactum’ mistake
Source: Federal News Radio, Richard Lieberman, November 24, 2015
One of the three basic requirements for a contract to be enforceable is consideration, which usually means a promise to pay money, but could mean that another valuable item would be provided instead (as in a trade, for example, of one valuable car for another valuable car).
In federal procurement contracts, the courts have said that to be a valid contract, the transaction “must show a mutual intent to contract including an offer, an acceptance and consideration.” If there’s no consideration, is it a contract? The answer is simple: it’s a “nudum pactum” and there is no valid contract.
A “nudum pactum” is defined as a “bare agreement,” a promise or undertaking without any consideration for it. Where there is a “nudum pactum,” the contract is neither valid nor enforceable.
Government contractors must be wary of performing under a “nudum pactum.” They likely will not be paid for their goods or work, and unlike a valid contract, the contractor will have no recourse to courts. The issue primarily arises where the contract contains one or more “availability of funds” clause. Read More …
Is money available for your contract? Contact your nearest PTAC if you have questions about this.
For help with Government Contracting: contact your nearest Procurement Technical Assistance Center (PTAC). Funded through Cooperative Agreements between the U.S. Department of Defense and state and local governments/institutions, PTACs provide free and low-cost assistance in virtually all areas of government contracting.