In law school, we learn about the concept of forbearance of legal action as consideration. We also learn about the question regarding whether the legal action was a good claim or not. At times, contract lawyers and construction lawyer in the real world, we are called on to analyze these esoteric question. In Wells v. Timms, 275 S.W. 468 (Tex. App., 1925) Wells v. Timms, 275 S.W. 468 (Tex. App., 1925), the Court said the following:
“It is declared in some decisions that to constitute a legal contract to forbear there must be a valid promise to do so, so that for some time the holder of the debt has no right to maintain an action on it, and that it is not sufficient to show that he did forbear. Under this view, the mere forbearance to sue, without an agreement to that effect, is not a sufficient consideration for a promise to pay the debt of the person liable, even though the act of forbearance was induced by the promise. But in view of the principle that an act may be a good consideration for a promise, it would seem that this rule would be applicable only to cases in which the person forbearing had not been requested to do so. * * * It is not necessary that the promisor should be benefited by such forbearance. Therefore, forbearance to sue is a sufficient consideration for the promise of a third person. As a promise may be a sufficient consideration for a promise, there seems to be no dissent from the proposition that a promise to forbear to sue is a sufficient consideration for the promise of the debtor or of a third person, and that a promise to forbear may be implied from the conduct of the parties and the nature of the transaction.”
Page 471
In Elliott on Contracts, vol. 1, page 403, § 235, it is said:
“An agreement to withhold suit either at law or in equity is a sufficient consideration to support a promise, although no fixed and definite time is expressly agreed upon.”
On page 407 of the same work, it is said:
“While it is definitely settled that a promise to refrain from resorting to legal means to enforce a valid obligation may furnish a sufficient consideration for a promise yet if the claim threatened to be enforced is invalid and worthless, a promise not to attempt to enforce or to refrain from making trouble concerning it is not a consideration recognized by the law as valuable. This doctrine was originally given a rigorous application, but it has been very materially modified by subsequent cases, and it is now held that it is not necessary in a suit on a promise given in consideration of a forbearance from suit that it should appear that there was a good cause of action or a fair and reasonable ground of success in the threatened suit. Forbearance to sue on a claim known to be frivolous and vexatious is not a sufficient consideration for the reason that the promotion of such suit would be or could be found to be either fraudulent or wanting in good faith, but, short of that, forbearance to sue is a good consideration for a promise founded thereon. It is only essential that the claim be doubtful either in law or equity and asserted in good faith.”
In Von Brandenstein v. Ebensberger, 71 Tex. 267, 9 S. W. 153, it is said, quoting from the headnote:
“An agreement to forbear to prosecute a suit to enforce a well-founded claim in law or equity is a sufficient consideration to support a promissory note of the debtor or of a third person, when the creditor, in pursuance with such agreement, has forborne as agreed upon.”
In 13 Corpus Juris, page 342, it is said:
“The waiver of a right to forbearance to exercise the same is a sufficient consideration for a promise made on account of it. The right may be legal or equitable, certain or doubtful, provided it be not utterly groundless, questions of motive being within this limit immaterial; and it may exist against the promisor or against a third party. But forbearance to do, or a promise to forbear from doing, that which the promisee cannot legally do, is no consideration for a promise to refrain from an act which, while perhaps not forbidden by law, is reprehensible on the grounds of policy and sound morality will not support a contract.” Wells v. Timms, 275 S.W. 468 (Tex. App., 1925)