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Click here for the full text of this decision FACTS:The petitioners, citing 87(1)(a) of the Restatement (Second) of Contracts, assert that the respondent’s offer to sell real property should be binding as an option contract, because the offer was in writing and signed by the respondent, acknowledged the receipt of a nominal consideration of ten dollars, and proposed an exchange on fair terms within a reasonable time. The respondent, contending that the parties’ written option agreement is unenforceable, asserts that the agreement lacks consideration because the recited nominal consideration was never actually paid, and that the offer was revoked before it was properly accepted. In July 1997, Gail Ann Joppich entered into an earnest-money contract with 1464-Eight, Ltd. and Millis Management Corporation (collectively “Millis”) under which Joppich agreed to buy and Millis agreed to convey an undeveloped residential lot located in a subdivision being developed by Millis. At the closing later the same month, Millis executed a special warranty deed conveying the lot to Joppich. In addition, the parties executed a separate four-page document entitled “Option Agreement.” Joppich filed suit against Millis, seeking a declaratory judgment that the Option Agreement was unenforceable. In her original petition, Joppich asserted that “[a]lthough the Option Agreement states that a sum of Ten and No/100 dollars was given to Plaintiff in consideration for granting the option, this sum was not then nor has it ever been tendered to nor paid to Plaintiff,” and she requested that “the Court declare that the Agreement granting the exclusive right and option to purchase [the Property] to the Developer is void and unenforceable for lack of consideration or alternatively, failure of consideration.” The trial court determined that the Option Agreement was enforceable, requiring Joppich to sell the property in compliance with the terms of the Option Agreement, and awarding attorney’s fees to Millis. the court of appeals reversed and remanded, concluding that “summary judgment for [Millis] was improper.” HOLDING:Reversed and remanded. Before the court of appeals’ decision in this case, no Texas appellate court had decided whether a written option agreement that contains a fictional recital of a nominal consideration is unenforceable for lack of consideration. Though the position taken by 87(1)(a) of the Restatement (Second) of Contracts “that the nonpayment of a recited nominal consideration should not preclude enforcement of a written option agreement” is the minority position among the limited number of state supreme courts that have addressed the question, this court is persuaded that this represents the better approach. OPINION:Smith, J., delivered the opinion of the court, in which Hecht, Owen, O’Neill, Wainwright, and Medina, JJ., joined. CONCURRENCE:Jefferson, C.J.; Brister, J., joins. “I agree with the authors of a leading treatise that while the Restatement approach is a step in the right direction, it”fails to lead the way to more progressive reform. Having recognized the value of the enforceability of options as commercial devices, it still insists on the fictional recital of a purported consideration. Such fictional charades should not be part of a mature legal system. Commercial promises such as options and credit guaranties should be enforceable without consideration.’ 2 JOSEPH M. PERILLO & HELEN HADJIYANNAKIS BENDER, CORBIN ON CONTRACTS 5.17 (rev. ed. 1995) (footnote omitted) . . .”

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