Learning to Read Like a Lawyer 71an explicit delineation of the facts in the case that would fit with the legal category
“consideration” (one of the requirements for contract formation).
This process may require excursions into other cases that the students have
read or into precedent cited by the court. These other cases provide analogical tem-
plates, because in them, the fit between specific fact and legal category has already
been established. Whether or not a legal claim can be established in the new case,
then, will depend in part on whether these facts are arguably similar to those in
previous cases where legal claims were upheld.
Transcript 4.9 [7/4/13]Prof.: [... ] Why does the court say there is no consideration in this promise?
Yes, Ms. S.?
Ms. S.: Because there was no- no exact agreement to forbear at this time, there
was no exact reason to forbear.
Prof.: Right. So the court, the court acts as a (). What would we call this kind of
promise?
Ms. S.: An illusory promise.
Prof.: It’s an illusory promise. This is an illusory promise. [... ] Now, could
his promise of forbearance have constituted consideration? Is the
money- it’s very important to understand what this case stands for. Is it
standing for the proposition that there’s no way that a promise to
forbear by a person in the plaintiff’s position () constitute consideration
for the- for the wife’s promise? Or is it simply that on these facts, it
simply didn’t happen? Which one? In other words, could there have
been adequate forbearance of a promise? Could there be a promise of
forbearance to constitute consideration? Mr. H.?
Mr. H.: Well, yeah. Certainly, I mean, if it were bargained for that would- he
would have said, “If you sign, if you endorse this, I will forbear for two
years. I give you that promise.” If it was nothing bargained for then it
(wouldn’t) be a consideration.
Prof.: Well, forbearance of a certain, for any legal right- and that was a clear
lesson of Hamer v. Sidway and Fiege v. Boehm. But forbearance (of) a
certain legal right constitutes- can constitute consideration. Now, it did
not in this particular case, because to do so he must give up something.
And he worded it in such a way that he still retained total discretion, and
Mr. H. is exactly right (). If he’s going to make her promise, and through
that promise, have (a) bargained for exchange, (if) it’s going to be
forbearance to assert the demand for payment, you’re going to have to
put a time on it. No matter how long it’s got to be in there because
otherwise he’s still got the right to demand payment immediately. So
they didn’t do it that way. It was not consideration on the facts in this
case because he did not agree to forbear for any certain period of time.
He still retains total discretion. [... ]First, note here the professor’s emphatic repetition of a technical category, “illu-
sory promise.” In a sense, teaching the students how to apply the law to facts and
teaching them the technical doctrine itself are here elided. This is not at all