Monday, September 28, 2020
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.