– Hamer v. Sidway (p.27)
o What did the uncle make a promise?
§ How do we know that it happened?
· Witnesses to the promise that was made
· Acknowledged it in writing that he made the promise
o Does a promise to be enforceable need to be made in writing or acknowledged in writing?
§ No – know this from Fiege v. Boehm
o The nephew was 15 when the promise was made
o Why do people who make promises not keep them?
§ They don’t believe that the other side did not fulfill the promise
§ Unknown circumstances
§ Deceit – make the promise knowing they will not keep the promise
§ Extenuating circumstance at the time the promise was made
o Defendant: the estate of the uncle
§ Not fulfilling the promise
§ The executor is claiming there is no consideration because the nephew benefited from the contract made
o Plaintiff: nephew’s wife
§ Claimed that the husband signed over his rights to his wife in this matter before he went into bankruptcy
o What does a promise have to do with a contract?
§ Contract = enforceable promise + somethings
· (1) promise + consideration à contract
· UCC – legislative, statutory
· Restatements – restatements of the rules of common law
o Become law in a certain jurisdiction when a court makes them law
o Definition of Contract (§1): a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty
§ Binding promise – which is enforceable
o Is their argument: there is no contract because there is no promise? NO
§ State is arguing that consideration is missing
o How do we figure out what consideration is?
o We need a rule to determine consideration
o 2 sources of law: common law + statutes
§ Legislature’s rule wins over common law
o When does the UCC apply in a contracts case?
§ P. 7 – 2 articles (mostly Article II)
§ Ex. § 2-102 – Scope; Certain Security and Other Transactions Excluded from this Article
· Transaction in goods = § 2-105: (1) Goods : means all things which are movable
o Ex: purchase for buying a new home – does the code apply? NO
o Ex.: contract for purchase of car – does the code apply? YES
o Ex.: contract for a job – does the code apply? NO
o Ex.: contract for selling books? YES
o Does the code apply to Hamer v. Sidway? NO
§ No goods
§ Not moveable
§ Look at Common Law (Restatements)
o Look at Common Law
§ § 71 (p. 191) – rule followed by commentary (there to be helpful)
· Commentary is not part of law – just how it was meant to be understood
§ § 79 (p. 195)
§ Look at what prior courts said
o Start by looking at UCC à before turning to Restatements
– Fiege v. Boehm (p. 34)
o Says he never mad
s that the nephew benefited from the promise that he made (promisee had no detriment)
o Abandoning a legal right
o Promisor (uncle) and promisee (nephew)
§ Promisor – person who made the promise we are seeking to enforce
§ Did the nephew make a promise?
· Or did he only try?
· He did not make a promise – the case is being defined as having a unilateral contract
o Claiming there is no detriment to the nephew because there is no harm to the nephew à he is better off for having abstained
o How is the executor defining benefit to supply that the uncle is not benefiting – if the benefit is to the nephew then there is no benefit to the uncle
o Court rejects that the uncle is not benefiting and that the nephew is à therefore there is consideration
o The court concludes that there is a promise + consideration à enforceable contract
o Is the court rejecting the scope of the benefit/detriment or the executor’s definitions of benefit/detriment
The court defines detriment: abandonment of a legal right (doing something you don’t have to do, or not doing something that you have the right to do), if you limit your legal freedom of action that is a detriment