PJC Business

C ONTRACTS

PJC 101.18

App.—Dallas 2005, no pet.). See Tex. R. Civ. P. 93, 94. Failure of consideration is dis tinct from lack of consideration. Belew v. Rector , 202 S.W.3d 849, 854 n.4 (Tex. App.—Eastland 2006, no pet.). Failure of consideration generally occurs when, because of some supervening cause after an agreement is reached, the promised per formance fails. US Bank, N.A. , 170 S.W.3d at 279. Burden of proof in written contract. In suits on a written contract, the burden of proof rests on the party alleging a lack of consideration. Tex. R. Civ. P. 94; Yanez v. Ducasson , No. 01-12-00173-CV, 2012 WL 6645011 (Tex. App.—Houston [1st Dist.] Dec. 20, 2012, no pet.) (“While [Tex. R. Civ. P. 94] identifies ‘failure of consideration’ as an affirmative defense, it does not include lack of consideration. Failure of consid eration is a legal principle distinct from lack of consideration. Moreover, the presence of consideration is a fundamental element to establish the existence of a contract. Accordingly, it is an element of the plaintiff’s burden of proof in a breach of contract claim, not an affirmative defense or plea in avoidance.”) (mem. op.) (internal citations omitted). Consideration may be implied in a written contract. Okemah Construction, Inc. v. Barkley-Farmer, Inc. , 583 S.W.2d 458, 460 (Tex. App.—Houston [1st Dist.] 1979, no writ). Burden of proof in oral contract. In actions on an oral contract, the burden is on the plaintiff asserting breach of contract claims to prove the existence of consideration. Okemah Construction, Inc. , 583 S.W.2d at 460 (collection cases). An oral modifica tion of a written contract must be supported by new consideration. Okemah Construc tion, Inc. , 583 S.W.2d at 460.

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