Mr. Culbertson V. Mr. Brodsky
788 S.W.2d 156, 1990 Tex. App. LEXIS 1008
Texas Court of Appeals, 1990

An illusory promise is a statement which appears to form a legal contract; however, it is vague, and lacks mutuality, providing an option for the person making a promise to have no actual obligation to perform as stated. For example, if someone says "I will make you a pie tomorrow”, this is an illusory promise, because the subject of the pledge is not being asked for anything in return and the baker is receiving no consideration for the promised activity. Because there is no consideration, there is no contract and neither party can enforce the deal (Beatty Sameulson).
Mr. Brodsky signed an option contract with Mr. Culbertson, and deposited a check of $5000, representing “earnest money”, to be held by the bank for the period of 60 days. Mr. Brodsky intended to purchase the real estate property from Mr. Culbertson, if the results of an engineering study and property inspection satisfied the requirements of his intended purpose for the property. The contract required the title company to hold the “earnest money” check in escrow until the expiration of the 60 day feasibility period. If Mr. Brodsky determined the property was unacceptable within this time frame, he could terminate the agreement, at his sole election, and demand the return of the earnest money with no further obligation of either party.
An option contract is a “right, which operates as a continuing offer, given in exchange for consideration—something of value—to purchase or lease property at an agreed price and terms within a specified time”. If Mr. Brodsky had provided a non-refundable fee or provided value in some other form, that would have been a consideration in the option contract. In that case, the deal between Mr. Brodsky and Mr. Culbertson would have been an enforceable contract.