In Venegas v. American Energy Services, 302 S.W.3d 299 (Texas 2009), former at-will employees of AES brought suit against AES and its shareholders asserting AES breached an agreement to pay them five percent of the proceeds received in the event of a sale or merger of AES. The defendants claimed that they were entitled to summary judgment because the promise to pay five percent of the proceeds in the event of a sale or merger was illusory since it depended on the continued employment of the employees who were at-will employees. As at-will employees, AES could have terminated their employment at any time, which made AES' promise illusory. The trial court granted the shareholders' motions for summary judgment, and the appellate court affirmed. The court noted Corbin's analysis that a promise is illusory when it fails to bind the promisor who retains the option of discontinuing performance. Because an illusory promise fails to bind the promisor under such circumstances, it provides no consideration for a contract. Since the employees were at-will employees, any promise made by either them or their employer that depended upon an additional period of employment was illusory because it was conditioned upon something that was exclusively within the control of the promisor. Thus, an employer's promise of a raise to an at-will employee is illusory because it depends upon a period of continued employment. After making the promise, the employer is free to fire the at-will employee and, therefore, avoid the obligation to perform the promise. The court also explained that AES's illusory promise could not serve as the offer for a unilateral contract, which has only one promisor, and is completed by the promisee's performing the act or acts called for by the promisor, not by the promisee making any reciprocal promise or promises. When the promisee delivers the bargained-for performance, the promisor then becomes bound to provide the promise to benefit. Here, in contrast, the court held that AES's illusory promise was no promise at all since it did not bind AES to do anything. The former employees could not convert AES's illusory promise into a binding non-illusory promise by their performance. Accordingly, the parties did not form a binding unilateral contract.

On appeal, the Supreme Court of Texas reversed and remanded based on analysis by Dr. John E. Murray and Tim Murray in a supplement to Corbin on Contracts:

". . . [T]he court of appeals' holding would potentially jeopardize all pension plans, vacation leave, and other forms of compensation made to at-will employees that are based on a particular term of service. Corbin on Contracts observed as much in discussing the court of appeals' opinion in this case:

The court's analysis may attempt to prove too much. The argument that  [*12] a promise to grant a raise to a terminable-at-will employee is necessarily illusory raises the question, why is an employer's original promise to pay a certain wage to an at-will employee enforceable when the employee performs? The court's analysis would suggest that the employer's promise was never enforceable. If an at-will employee is hired at a promised compensation and performs for some period, the court's analysis would suggest that the promised rate of compensation was never enforceable.

"1 JOHN E. MURRAY, JR. & TIMOTHY MURRAY, CORBIN ON CONTRACTS § 1.17 (Supp. Fall 2009). We agree that the court of appeals' opinion could have far-reaching adverse effects on wellestablished forms of compensation."

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In Pateley Associates v. Pittney Bowes, Inc., 2010 U.S. Dist. LEXIS 31536 at *49 (D.Conn. 2010): "Breach of the covenant of good faith and fair dealing is a cause of action that does not in and of itself excuse nonperformance of contractual obligations, whereas the common-law doctrine of prevention can serve to excuse nonperformance. "[I]t is a defense if [the party alleged to be in breach of contract] can prove that [its] performance was prevented or substantially hindered by the plaintiff." 10 John E. Murray, Jr., and Timothy Murray, Corbin on Contracts § 947, at 8 (Interim ed. 2002 & Fall 2009 suppl.) . . . ." 

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In Ramirez-Lebron v. International Shipping Agency, Inc., 539 F.3d 124, 132 (1st Cir. 2010), the court wrote: "Mutual promises to arbitrate a dispute are the agreed equivalents of each other. A repudiation by one party of his promise to arbitrate discharges the duty of the other party to perform his reciprocal promise . . . . This is true, even though the provision for arbitration is only a part of a larger contract such as a collective bargain between an employer and his employees.

"10 John E. Murray Jr. & Timothy Murray, Corbin on Contracts § 972, at 102 (Cum. Supp. 2009) (interim edition)."