Teaching Assistants: Douglas Baird
Douglas Baird (at left) has an engaging historical essay, Reconstructing Contracts: Hamer v. Sidway, in Foundation Press’s Contracts Stories, pp. 160-185, which Baird also edited. The essay does far more than provide a narrative background (actually several narrative backgrounds) on what Frank Snyder has called “the granddaddy of all unilateral contracts cases.” The case involves a pledge by William E. Story, Sr. (“William”) to his nephew, William E. Story, 2d (“Willie”) that William would give Willie $5000 if Willie abstained from drinking, smoking and gambling until his 21st birthday. Judge Parker’s decision for the N.Y. Court of Appeals articulates the doctrine that forebearance from engaging in activities in which one has a legal right to engage suffice as consideration. Parker’s opinion reduces the facts of the case in a way that render it ideal for teaching that particular doctrine. Baird’s essay complicates the facts and illustrates how they can be spun to justify any number of rulings on different legal grounds.
Baird begins with a fascinating account of the role Hamer v. Sidway has played in legal education right from the time it was decided. He then proceeds to a number of “reconstructions” of the facts of the case. In various versions of the case, Willie can come off as a “wayward adolescent” or as “a responsible adult who . . . has to care for an elderly parent.” (161) Baird expresses skepticism about courts’ abilities to sort out family relationships — which may be both intimate and commercial — and to determine which promises made in the family context ought to be enforced. While Judge Parker’s opinion in Hamer reduces the focus of the narrative to the relationship between William and Willie, Baird suggests that the conflict had at least as much to do with William’s relationship to his older brother, Willie’s father, and with William’s concerns about making sure his neices were cared for after his death.
In the formalist version of the facts of Hamer, Willie bargains with his uncle, reserving for himself the right to play cards and billiards, “so long as it was not for money.” (164) In formalist hands, the case served to limit the number of enforceable promises, becasue the facts of Hamer could be contrasted with other familial promises in which the elements of a bargain were not present. Hamer is thus a very satisfying case from the formalist, doctrinal perspective, but Baird notes that formalists such as Langdell and Holmes did not provide — and did not care to provide — any justification for the principle of bargained-for exchange as a means of determining which promises ought to be enforced. (165)
Focusing on different facts, Corbinian Legal Realists questioned whether Hamer involved a bargain at all. They saw William’s statements as adding a condition (Willie needed to straighten up and fly right) to a pre-existing gratuitous pledge William had made repeatedly since Willie was a boy. (166) Still, Legal Realists could live with the result in Hamer because it protected Willie’s reasonable reliance on his uncle’s promise.
Baird next reconstructs the facts from the perspective of William’s executor, Franklin Sidway (at left). From this perspective, it is not hard to see why New York’s intermediate appellate court refused to enforce William’s promise. William had already given Willie and his father $5000 to start up a business. That business failed, leading Willie into bankruptcy. Later, William again set up Willie and his father in a business, at which time Willie executed a release discharging William from any claims Willie might have against him. (176) There were also good grounds for believing that Willie’s assignment of his claim against his uncle was a fraudulent transfer. (177) From this perspective, it seems that the promise, if there was one, was either already fulfilled (perhaps twice) or excused. It must have been surprising to Sidway that the court even reached the issue of consideration.
Baird then reconstructs the facts of Hamer again, this time from the perspective of Willie’s father, James. Here Baird assembles from the court record evidence of the complex financial arrangements between the brothers. Apparently William provided for James, both by paying him to care for their demented father and by allowing him to live in properties that William owned provided that James contributed to the renovations of such homes. William might have viewed these arrangments as a form of charity. James more likely viewed the arrangements as just compensation. In any case, Baird speculates that William’s sudden death may have deprived James of a home. Willie may have pursued his claim (through his mother-in-law) against his uncle in order to procure the means to house his father.
In his conclusion, Baird reminds us that whether or not a promise should be enforceable turns “on whether enforcing that promise will make the society in which it operates a better place.” (185) I have a hard time deriving that lesson from the conflicting narratives that Baird reconstructs. If by “that promise” Baird means William’s specific promise to Willie, his multiple narratives suggest that courts are ill-equipped to decide the question. Should a court be deciding whether society benefits from favoring James Story over William Story, Sr.’s nieces?
If by “that promise” Baird means “that kind of promise” — or “that category of promises,” one’s answer will depend on what sort of promise one thinks William made to Willie. Choosing which category fits the promise will also turn on one’s preferred reading of the facts, and once again, Baird seems to think courts are not well-positioned to make such choices. Perhaps Baird is advocating placing William’s promise in the category of “familial promises,” a category of promises that we know should rarely be enforced. But some such promises clearly should be enforced, and it would be helpful to be able to identify that sub-category.
[Jeremy Telman]