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Which of these is true regarding "failure of consideration" and "lack of consideration"?

a. They are real defenses which can be used against holders in due course.
b. Failure of consideration is a real defense and lack of consideration is a personal defense.
c. Failure of consideration is a personal defense and lack of consideration is a real defense.
d. They are personal defenses which cannot be used against holders in due course.

1 Answer

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Final answer:

Failure of consideration is a personal defense indicating promised performance wasn't provided, while lack of consideration is a real defense indicating no obligation for performance was present. The correct statement is that failure of consideration is a personal defense and lack of consideration is a real defense.

Step-by-step explanation:

The distinction between "failure of consideration" and "lack of consideration" is an important one in the context of negotiable instruments. Failure of consideration typically refers to a situation where the performance that was promised in a contract has not been provided or has partially failed, making it a personal defense. On the other hand, a lack of consideration means that there was no obligation to provide performance in the first place, which is a real defense. Considering these definitions, the correct statement is that failure of consideration is a personal defense and lack of consideration is a real defense. This means that a real defense can be used against all holders of the instrument, including holders in due course, whereas a personal defense can only be used against holders who are not holders in due course.

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