J Scott,
I hear you. I was trying to place the earnest money check with escrow, and then have it remain un-cashed until my contingencies were removed.
I got opinions from three different attorneys because I wanted to be able to sue for specific performance if a seller backed out of a contract.
Each said my chances of winning a suit for specific performance where basically zero without cash consideration. Chances of winning doubled by having a nonrefundable earnest money (part one) $50.00 together with a refundable earnest money (part two) in an amount based on the transaction.
I'm not saying that you are wrong, but I am saying that a judge will look at a "promises to close" differently than actual cash consideration. You don't want to be in a situation where the other side can say, it's not a valid contract.
It's a basic contract law premise. A promise is not the same as cash as far as consideration in contract law. Contract law actually varies from state to state, but they are state laws.