ContractsProf Blog

Editor: Jeremy Telman
Valparaiso University Law School

Monday, September 28, 2020

A Series of Takes on Hamer v. Sidway, Part I

Franklin Sidway, the Defendant

I keep coming back to Hamer v. Sidway.  I have concluded that I don't like the idea of enforcing this kind of promise.  The promise has the following characteristics

  • It is a promise to give money to a family member;
  • It is oral, and it cannot be performed within a year;
  • It is made at a family gathering;
  • It is an offer to enter into a unilateral contract, but the nephew's performance cannot be verified; and
  • It is "evidenced" in a letter that actually indicates that the Uncle set aside money for the nephew as an unexecuted gift whether or not the nephew performed (thinks to David Hoffman for this insight on the Promises, Promises podcast).

In short, a court cannot enforce an alleged oral promise made between family members at a family celebration over twenty years ago where the only evidence of that alleged promise is a self-serving letter of the offeree and a letter of the offeror that characterizes the promise as a gift promise and also suggests that the offeror still, STILL does not want to entrust the money to his rapscallion nephew and namesake.  I don't think any such promise should be enforced (and I admit that they are unlikely to come up very often).  However, if we are going to recognize detriments as consideration, we should follow the Hamer court and require a legal detriment. 

On that, more to come.

Commentary, Famous Cases | Permalink


You should look at Douglas Baird’s history of the underlying and unrecounted facts of the case in “Contract Law Stories,” part of the series edited by Paul Caron. I do a second take on Hamer v. Sidway every year to demonstrate how Judge Parker has “gaslighted” students for 130 years by focusing on particular facts that happen to support a particular rule that was a Harvard Law School cause celebre in 1890. Young Willie and his family were scumbags. Franklin Sidway was right to tell them to buzz off.

At best, under a full recounting of the facts, this would have (anachronistically) perhaps have been a promissory estoppel case, but the point is that there was no bargain. It was a gift in the form of a conditional promise.

Posted by: Jeff Lipshaw | Sep 28, 2020 6:18:50 AM

Shhh! The next post is going to be about Doug Baird's piece!

Posted by: D. A. Jeremy Telman | Sep 28, 2020 8:27:11 AM

How do we explain the uncle's reference in his letter to an exchange of promises: "Your letter of the 31st ult. came to hand all right saying that you had lived up to the promise made to me several years ago. I have no doubt but you have, for which you shall have $5,000 as I promised you."

Posted by: CHARLES R CALLEROS | Sep 28, 2020 9:07:28 AM

There were two promises, but the one was not given in exchange for the other. The Uncle states that he had already set aside the $5000 before receiving the nephew's [completely unsubstantiated and self-serving] claim that the latter had refrained from smoking, drinking, swearing, and gambling up to the age of 21. His performance was not induced by the nephew's performance and so we have two undertakings but no bargain. The nephew claims to have performed, and the uncle effectively says, whether or not you have, you shall have the money . . . but not yet because I still don't trust you.

Posted by: D. A. Jeremy Telman | Sep 28, 2020 11:01:40 AM

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