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Wayne State University Law School
Findlater, Janet


–         Hamer v. Sidway (p.27)
o       What did the uncle make a promise?
§         Yes
§         $5,000
§         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