In an otherwise lengthy opinion, the Fort Worth Court of Appeals provided a reminder to civil practitioners regarding the difference between failure of consideration and lack of consideration. The Court noted:
[L]ack of consideration refers to a contract that lacks mutuality of obligation. Failure of consideration, however, occurs when, due to a supervening cause after an agreement is reached, the promised performance fails. The distinction between the two is that lack of consideration exists, if at all, immediately after the execution of a contract while failure of consideration arises because of subsequent events.
The distinction is also important because failure of consideration requires a verified pleading under TRCP 93, while lack of consideration, as an element of the claim, does not. The Court’s opinion in City of The Colony v. North Texas Mun. Water Dist. can be found at this link.