A Series of Takes on Hamer v. Sidway, Part V: Public Policy
To recap: Part I of this series provided an overview of my reasons for thinking that no court should have enforced the alleged promise at issue in Hamer.
Part II reviewed Douglas Baird’s detailed reconstruction of the facts of the case.
Part III was a frivolous digression into the difficulty of refraining from cursing once one has acquired the habit of cursing.
Part IV defended the holding of the case that a legal detriment is required for an act of forbearance to qualify as consideration.
In today’s final post on this subject, I defend the legal doctrine on policy grounds.
The argument in favor of the any-detriment-will-do camp is that we should encourage contractual incentives that align with public policy. If public policy makes it illegal for people under 21 to drink alcohol, then it is good to have an added incentive for people under age to comply with that public policy. In my view, no public policy is served by rewarding well-connected people for doing what ordinary people have to do anyway. Willy already has all of the privileges of being a well-connected young man. He is less likely than others to be harassed by law enforcement because law enforcement exists to protect people like him. According to my in-depth research, the $5000 that Willie was to receive in 1875 would be worth nearly $120,000 today. It seems odd that one young man should be entitled to a significant sum of money for behaving decently while his college roommate gets nothing despite being similarly upstanding. As things are, we struggle to create a legal environment in which neutral laws of general applicability are indeed applied neutrally without regard to age, sex, race, nationality, gender identity, sexual preference, wealth, or income. Why add another thumb on the scales of justice in favor of those already likely to benefit from structural inequalities?
Imagine two brothers, let’s call them Goofus and Gallant. Goofus was an ill-behaved young man. By the time he reached the age of 15, he was already bumming cigarettes, playing cards for money, dipping into the family liquor cabinet, and speaking abusively to classmates and people who worked with their hands. Gallant, on the other hand, never misbehaved. He was always sweet-tempered, respectful of others, kind, and considerate. The boys’ father had not succeeded in business, and they lived a simple life, but they had a rich uncle. The uncle, who shared Goofus’s name but not his temperament, grew concerned that young Goofus (Goofy) was heading down a dangerous path. At a family gathering, he pulled the young ruffian aside, and offered the same promise on the same terms as in Hamer. Goofy readily agreed to his uncle’s terms, and six years later, Goofy reported to Uncle Goofus that he had fulfilled his end of the bargain.
Leaving aside my doubts as to the veracity of Goofy’s claim, what of poor Gallant? Let us suppose that Gallant, kind-hearted soul that he was, turned out to be no more of a success in life than his father. The problem was not lack of ability or creativity but lack of resources. Goofy, meanwhile, was a natural bon-vivant, who charmed people into supporting his various ventures and always lived very well while cleverly evading his creditors. The Uncle’s gift could easily encourage another five to ten years of happy grifting while even a spotless soul like Gallant might gnash his teeth a bit at the injustice that Gallant has been rewarded for being a wayward child. Confronted with the injustice, Uncle Goofus might just shrug. He was a bit of a rake himself in his youth, and he never felt much kinship with Gallant, that goody-two-shoes.
Of course, it’s Uncle Goofus’s money, and he can give it out at his pleasure. But it was never his pleasure while he lived to keep his promise to Goofy . Uncle Goofus straightened up and learned the value of earning one’s fortune through dedicated labor. Goofy never learned that lesson, and I see no public policy benefit in requiring that he nonetheless be rewarded.
Ordinarily, I am not such a scold. The world is full of people who make their way in it in ways that diverge from my own. Diversity is a blessing, and, assuming no genuinely harmful misconduct, we should strive to be happy for those who prosper through ways of thinking and acting that remain mysterious to us. But if we are trying to think on a macro level about public policy, I would rather that we not give a leg up to those who happen to have a rich uncle and a history of conduct that, if not reprehensible, is far from sterling.
In conclusion, I want to thank William Story for the unexecuted gift (as I would characterize it) that keeps on giving. I first encountered this case in 1996. Rarely a year has since passed in which I have not thought about it. And each time I re-visit it, I learn from it. The facts are odd; the situation is not likely to come up very often, but few cases have helped me think about consideration and teach the doctrine to students as much as Hamer. If I could bring myself to pronounce the case that way, I might even say that, in my contracts course, it can always be Hamer Time!
