Putting It All Together: Case Synthesis & Note-Taking Fall 2009

1. Putting It All Together:Case Synthesis & Note-TakingFall 2009 Prof. Carol B. Swanson

2. For Today’s Workshop… • A “Heads Up” on upcoming Contracts readings… • Knapp/Crystal/Prince, pp. 72-75, 87-88 • Hamer v. Sidway (NY Ct App 1891)(uncle promises nephew $5,000 for abstaining from alcohol, tobacco, cursing, gambling) • Dougherty v. Salt (NY Ct App 1919)(aunt gives 8-yr-old nephew a $3,000 note for “value received”)

3. NOTES (OUTLINE) SYNTHESIS

4. SYNTHESIS?? NOT! CASE CASE CASE

5. Law School classes so far… • About what I expected. • More challenging than I thought they would be. • Easier than I thought they would be.

6. Seriously considered giving up? • Yes. • No.

7. Up-to-date with your course reading? • Of course. • For the most part. • Getting a bit behind. • Starting to get swamped. • I’m pathetic.

8. As an undergraduate, I… • Never took class notes. • Sometimes took class notes. • Almost always took class notes.

9. Note-taking BEFORE class… • I always create at least several pages of notes for class prep. • I always create notes, but not that much. • I sometimes create notes. • I don’t make any notes.

10. Note-taking IN class… • I always take at least several pages of notes each class. • I always take notes, but not that much. • I sometimes take notes. • I don’t take notes.

11. Class Prep vs. Class Reality • My understanding before class routinely matches class discussion. • My understanding before class is usually in a different time zone (planet).

12. So What’s the POINT? Notes in Casebook Structure Before Class Refine Notes While in Class Further Refinement at Least Weekly Outside of Class COURSE OUTLINE! Executive Summary

13. Course Outlines… • I have never done a course outline before. • I have done at least one course outline, but not many! • I regularly have created course outlines.

14. Have you already started your Contracts outline? • Yes. • No.

15. Note-Taking BASICS (Knapp) • Intro to Contract Law • Sources • Perspectives • Basis of K Obligation: • Mutual Assent • Objective Theory • Offer/Acceptance in Bilateral, Unilateral • Consideration • Special Issues

16. Focus on CONSIDERATION… • Define It • Hamer v. Sidway • History • Pennsy Supply, Inc. • Notes/Functions of Legal Formalities • Apply It • Dougherty v. Salt

17. Note-Taking ASIDES… • Keep certain notes to the side as running tallys rather than keeping them BURIED in your “normal” notes • Best examples: • POLICY themes • EXAM focus

18. What about all the stuff in the casebook that the professor doesn’t mention? • It’s fair game for the test. • You won’t be tested on it. • It depends.

19. CONTRACTS in a NUTSHELL • Contracts are enforceable promises • Not all promises are enforceable • So how do we determine which promises should be enforced? • PRIMARY MECHANISM—CONSIDERATION! • Consideration = bargained-for exchange

20. Consideration “Gold Nuggets” • Benefit to the promisor OR detriment to the promisee (one way to ascertain existence of bargained-for exchange) • Gift promises/conditional gifts • Past consideration (is no consideration) • Nominal consideration (in name only) • Adequacy of consideration (almost) never questioned! (peppercorn)

21. Case Briefing: Hamer v. Sidway • Case Name/Court/Date: • Hamer v. Sidway (N.Y. Ct. App. 1891) • Procedural Posture (Facts?): • P acq’d K claim as remote assignee from nephew • D is executor of uncle’s estate • Special Term trial: J/P • Supreme Ct (Gen’l Term): Rev’d & rem’d • Here: Ct App reverses, affirms Special Term (J/P)

22. Case Briefing: Hamer v. Sidway Facts • Uncle told his nephew that if the nephew refrained from drinking liquor, using tobacco, swearing, and playing cards or billiards for money until he became 21, then the uncle would pay him $5,000. • Nephew agreed and fully performed. • When nephew turned 21, parties mutually agreed that the uncle would hold the $5,000 until the nephew is capable of “taking care of it.” • Uncle died (12 yrs later) without having paid nephew. • P acq’d K claim as remote assignee from nephew. • D is executor of uncle’s estate.

23. Case Briefing: Hamer v. Sidway Issue & Holding • Does the consideration doctrine’s benefit/detriment analysis render enforceable a promise to pay money in return for the promisee’s agreement to give up liquor, tobacco, swearing, and gambling, even though the promisee arguably benefited from performance, and no benefit to the promisor has been demonstrated? • Held: YES.

24. Case Briefing: Hamer v. Sidway Analysis • Court cites various consideration definitions: • “may consist either in some right, interest, profit or benefit accruing to the one party, or some forebearance, detriment, loss or responsibility given, suffered or undertaken by the other” –Exchequer Chamber (1875) • “In general, the waiver of a legal right at the request of another party is a sufficient consideration for a promise” --Parsons • “Consideration means not so much that one party is profiting as that the other abandons some legal right in the present or limits his legal freedom of action in the future as an inducement for the promise of the first.” –Pollock

25. Case Briefing: Hamer v. Sidway Analysis • Promisee nephew had legal right to use tobacco, drink liquor; he abandoned rights for years, based on his uncle’s promise • This forbearance furnishes good consideration, regardless of what effort was required to forego these activities, or whether the nephew or uncle benefited from the forbearance • Ct favorably cites several cases finding consideration where the promisee gave up legal rights: Lakota (drinking); Talbott (tobacco)

26. Case Briefing: Hamer v. Sidway Rules • Consideration may consist either in some right, interest, profit or benefit accruing to the promisor, or some forebearance, detriment, loss or responsibility given, suffered or undertaken by the promisee. • Consideration means not so much that one party is profiting as that the other abandons some legal right in the present or limits his legal freedom of action in the future as an inducement for the promise of the first. • In general, the waiver of a legal right at the request of another party is a sufficient consideration for a promise. • If a promisee agrees to forego his legal right to engage in certain activities (like drinking and smoking), that forebearance is good consideration supporting the promise to pay.

27. What Does Dougherty Add? • Aunt hands $3,000 promissory note to 8-yr-old nephew (printed form contains the words “value received”), saying to him “You have always done for me, and I have signed this note for you”, and telling his mother that she loved the child, wanted to take care of him. • Why does the court conclude that this promise is NOT enforceable?

28. Not Enforceable Because… • Aunt did not actually intend to give the boy $3,000. • There was no legally cognizable “offer” or “acceptance.” • There was no bargained-for exchange.

29. Remember the Initial Focus on CONSIDERATION… • Define It • Hamer v. Sidway • History • Pennsy Supply, Inc. • Notes/Functions of Legal Formalities • Apply It • Dougherty v. Salt How does that focus CHANGE after class?

30. CONSIDERATION after Class • Consideration DEFINED • Bargained-For Exchange • Benefit to promisor or detriment to promisee • The forbearance of a legal right is enough (Hamer v. Sidway)(uncle promises nephew $5,000 to not drink, smoke, gamble, swear) • COMPARE: Consideration is NOT… • Contrast donative promises (Dougherty v. Salt)(aunt gives 8-yr-old nephew a $3,000 note for “value received”) • Stated consideration (for “value received”) is not enough (Dougherty) • Past consideration is no consideration (“you have always done for me”)(Dougherty)

31. Synthesis Excitement:HYPOTHETICAL #1 • Alice & Carol are sisters. • Alice is a vegetarian, and she wants Carol to stop eating meat, too. Carol is reluctant to give up hamburgers. • Alice says to Carol, “Please stop eating meat for a month! You are my sister, and I want you to be healthy. If you give up meat, you would certainly deserve $300!” • Carol stops eating meat for a month and now demands $300 from Alice.

32. What Result? • No recovery. • Carol can recover because she gave up the right to eat meat for a month. • Carol cannot recover because she enjoyed a benefit (good health) under the promise.

33. Synthesis Excitement:HYPOTHETICAL #2 Alice & Carol are sisters. Alice says to Carol, “You are my sister, and you mean the world to me. You have taken care of our mother for many years. In fact, please accept my promissory note in the amount of $5,000.” The promissory note includes the language “for good consideration and other value received.” Carol later demands that Alice make good on the $5,000 note.

34. What Result? • No recovery. • Carol can recover because she provided extensive services in caring for their mother over the years. • Carol can recover because the note stated “for good consideration and other value received.”

35. Synthesis Excitement:HYPOTHETICAL #3 Alice & Carol are sisters. Alice says to Carol, “You are my sister, and you mean the world to me. I would feel so much better if you stopped smoking marijuana for a month. If you do, I will pay you $500.” Carol reluctantly stops smoking marijuana for a month. Carol demands that Alice pay her $500.

36. What Result? • No recovery. • Carol can recover because she gave up marijuana for a month. • Carol can recover, but only if the promise was in writing. • Something else.

37. TIPS for Note-Taking & Outline SUCCESS • Start Today (set up OUTLINE for each class) • Communicate • Keep in mind the “BIG PICTURE” • Issues/doctrines, not individual cases • Cases demonstrate important CONTEXT • Read the materials closely, but retain perspective • Allocate your time wisely • Maintain your sanity

38. Good Luck!Enjoy Your Fall Semester! Questions or concerns? Feel free to contact me… Carol Swanson cswanson@hamline.edu 651-523-2138