Putting It All Together:Case Synthesis & Note-Taking

Prof. Carol B. Swanson

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”)

NOTES(OUTLINE)

SYNTHESIS

SYNTHESIS??

NOT! CASE

CASE

CASE

Law School classes so far…

About what I

e...

More ch

allengi...

Easie

r than I .

..

0% 0%0%

1. About what I expected.

2. More challenging than I thought they would be.

3. Easier than I thought they would be.

Seriously considered giving up?

Yes

. N

o.

0%0%

1. Yes.

2. No.

Up-to-date with your course reading?

Of c

ourse.

For t

he most

p...

Getting a

bit ...

Starti

ng to ge

...

I’m path

etic.

0% 0% 0%0%0%

1. Of course.

2. For the most part.

3. Getting a bit behind.

4. Starting to get swamped.

5. I’m pathetic.

As an undergraduate, I…

Neve

r took cl

a...

Sometimes t

ook...

Almost

always

...

0% 0%0%

1. Never took class notes.

2. Sometimes took class notes.

3. Almost always took class notes.

Note-taking BEFORE class…

I alw

ays cre

ate at least

s...

I alw

ays cre

ate notes, bu...

I sometimes c

reate notes.

I don’t m

ake any notes.

0% 0%0%0%

1. I always create at least several pages of notes for class prep.

2. I always create notes, but not that much.

3. I sometimes create notes.

4. I don’t make any notes.

Note-taking IN class…

I alw

ays take

at least

sev..

.

I alw

ays take

notes, but n

..

I sometimes t

ake notes.

I don’t t

ake notes.

0% 0%0%0%

1. I always take at least several pages of notes each class.

2. I always take notes, but not that much.

3. I sometimes take notes.

4. I don’t take notes.

Class Prep vs. Class Reality

My underst

anding before...

My underst

anding befor...

0%0%

1. My understanding before class routinely matches class discussion.

2. My understanding before class is usually in a different time zone (planet).

So What’s the POINT?Notes in Casebook Structure

Before Class

Refine Notes While in Class

Further Refinement at Least Weekly Outside of Class

COURSEOUTLINE!

Executive Summary

Course Outlines…

I have

never d

...

I have

done at...

I regu

larly ha...

0% 0%0%

1. I have never done a course outline before.

2. I have done at least one course outline, but not many!

3. I regularly have created course outlines.

Have you already started your Contracts outline?

Yes. N

o.

0%0%

1. Yes.

2. No.

Note-Taking BASICS (Knapp)

1. Intro to Contract Lawa) Sources

b) Perspectives

2. Basis of K Obligation:a) Mutual Assent

i. Objective Theory

ii. Offer/Acceptance in Bilateral, Unilateral

b) Consideration

c) Special Issues

Focus on CONSIDERATION… Define It

Hamer v. Sidway History

Pennsy Supply, Inc. Notes/Functions of Legal Formalities

Apply It Dougherty v. Salt

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

What about all the stuff in the casebook that the professor doesn’t mention?

It’s f

air game...

You won’t b

e t...

It depends.

0% 0%0%

1. It’s fair game for the test.

2. You won’t be tested on it.

3. It depends.

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

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)

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)

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.

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.

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

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)

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.

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?

Not Enforceable Because…

Aunt did not a... There was no l... There was no b...

0% 0%0%

1. Aunt did not actually intend to give the boy $3,000.

2. There was no legally cognizable “offer” or “acceptance.”

3. There was no bargained-for exchange.

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?

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)

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.

What Result?

No re

cove

ry.

Car

ol can re

co...

Car

ol cannot r

...

0% 0%0%

1. No recovery.

2. Carol can recover because she gave up the right to eat meat for a month.

3. Carol cannot recover because she enjoyed a benefit (good health) under the promise.

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.

What Result?

No re

cove

ry.

Car

ol can re

co...

Car

ol can re

co...

0% 0%0%

1. No recovery.

2. Carol can recover because she provided extensive services in caring for their mother over the years.

3. Carol can recover because the note stated “for good consideration and other value received.”

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.

What Result?

No re

cove

ry.

Car

ol can re

co...

Car

ol can re

co...

Som

ethin

g els

e...

0% 0%0%0%

1. No recovery.

2. Carol can recover because she gave up marijuana for a month.

3. Carol can recover, but only if the promise was in writing.

4. Something else.

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

Good Luck!Enjoy Your Fall Semester!Questions or concerns? Feel free to contact me…

Carol Swansoncswanson@hamline.edu

651-523-2138