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In the 1961 episode of the Twilight Zone, The Silence, a contract is made and I want to know if either party gave valid consideration making it an enforceable contract or would PE apply? Ignore the fact that the "contract" is a wager and thus illegal in their state, according to the wiki.

A and B are members of a social aristocrat's club and A cannot stand B's incessant, constant and obnoxious talking. A proposes a bet to B that if B lives in an enclosed glass box in the club's game room for one year without speaking and instead communicating all his thoughts on paper (for food, stuff to read, notes to his wife, etc), A will pay B $500,000. A puts a check on deposit in B's name, displaying a copy for all members of the club to view. A comes by to visit B at regular intervals as time goes by, taunting B that his wife is leaving him and offering smaller amounts to induce B to give up early, but B remains determined to uphold the wager.

After one year, B lives up to his end and hasn't spoken a word. B emerges from the box and holds his hand open to A expecting payment. However A is broke and was broke at the time of the contract believing B would never fulfill his end anyhow. In a twist unknown to A, B had actually severed his own vocal cords before entering the box, rendering himself unable to speak in advance believing he could never remain silent otherwise.

In this situation is the K utterly unenforceable? A never stipulated the means in which B was to remain silent, so does it matter that he severed his own vocal cords meaning he couldn't speak even if he tried? Is the "severing" count as consideration? How does it play in that A never had the money in the first place? Certainly, B suffered a detriment in severing his own vocal cords but A did not know of that detriment, but is he liable to B for the time spent in the box? Does promissory estoppel apply?

Sorry first week of 1L and trying to apply these concepts to something that was familiar.

Good questions. They are answered by more questions.

What is the law defining consideration that you're looking to apply?

RE: PE, the issue is whether A could reasonably foresee B would sever his vocal cords.

I think lack of talking for a year, which is something that he is legally entitled to do, is enough of a detriment without bringing in the severing of vocal chords (similar to Hamer v. Sidway, right?).

Anyway, I think A is clearly in breach, but you can't collect blood from a stone.

Edit: A definitely gets consideration because it's something he bargained for, and at least in the K B gets consideration in the form of 500k bucks. I have twice as much Ks knowledge as you at the moment (just finished 2nd week), so I could be COMPLETELY full of shit.

NoodleyOne wrote:I think lack of talking for a year, which is something that he is legally entitled to do, is enough of a detriment without bringing in the severing of vocal chords (similar to Hamer v. Sidway, right?).

Anyway, I think A is clearly in breach, but you can't collect blood from a stone.

Sure but is Hamer v. Sidway the consideration law OP wants to apply? That's not an oft-cited case and its definition of consideration, IIRC, was a stretch even for its time and has been supplanted by modern promissory estopple law. It would be worth it to mention Hamer v. Sidway but better to first mention Restatement, i.e. mutual inducement.

There is a statute of frauds issue of course.

There is also a restitution issue for the taunting. Taunting wasn't part of the deal. It likely was the actual motivation for A to enter into the bargain. (Note that does not negative mutual inducement per Restatement 81.) Therefore, the taunting has value to A. B should get 500 grand plus the value to A of the taunting. (edit: maybe but probably not, per below.)

manofjustice wrote:

NoodleyOne wrote:I think lack of talking for a year, which is something that he is legally entitled to do, is enough of a detriment without bringing in the severing of vocal chords (similar to Hamer v. Sidway, right?).

Anyway, I think A is clearly in breach, but you can't collect blood from a stone.

Sure but is Hamer v. Sidway the consideration law OP wants to apply? That's not an oft-cited case and its definition of consideration, IIRC, was a stretch even for its time and has been supplanted by modern promissory estopple law. It would be worth it to mention Hamer v. Sidway but better to first mention Restatement, i.e. mutual inducement.

There is a statute of frauds issue of course.

There is also a restitution issue for the taunting. Taunting wasn't part of the deal. It likely was the actual motivation for A to enter into the bargain. (Note that does not negative mutual inducement per Restatement 81.) Therefore, the taunting has value to A. B should get 500 grand plus the value to A of the taunting.

Alright then. Haven't gotten to promissory estoppel yet, and knew that Hamer v. Sidway was based on the older law. To the rest...



Still, question. If the complaint just mentioned the breach, wouldn't all B be able to recover be what was included in the contract?

NoodleyOne wrote:

manofjustice wrote:

NoodleyOne wrote:I think lack of talking for a year, which is something that he is legally entitled to do, is enough of a detriment without bringing in the severing of vocal chords (similar to Hamer v. Sidway, right?).

Anyway, I think A is clearly in breach, but you can't collect blood from a stone.

Sure but is Hamer v. Sidway the consideration law OP wants to apply? That's not an oft-cited case and its definition of consideration, IIRC, was a stretch even for its time and has been supplanted by modern promissory estopple law. It would be worth it to mention Hamer v. Sidway but better to first mention Restatement, i.e. mutual inducement.

There is a statute of frauds issue of course.

There is also a restitution issue for the taunting. Taunting wasn't part of the deal. It likely was the actual motivation for A to enter into the bargain. (Note that does not negative mutual inducement per Restatement 81.) Therefore, the taunting has value to A. B should get 500 grand plus the value to A of the taunting.

Alright then. Haven't gotten to promissory estoppel yet, and knew that Hamer v. Sidway was based on the older law. To the rest...



Still, question. If the complaint just mentioned the breach, wouldn't all B be able to recover be what was included in the contract?

I don't know. That's civil procedure. It would be an ineffective argument on a contracts exam. You want to cover as many viable theories of liability as you can. That's a rule for any exam.

Because there is a statute of frauds issue, it's best to analyze the entire problem under restitution. Restitution is a way around the statute of frauds.

The key question is how you would organize your answer. I'm a little rusty, but I'd go...

Contract
SoF
-RAC
O/A
-RAC
Consideration
-RAC-1 (mutual inducement)
-Quick hit: Rest. 2d 81 (even if A's motivation was to taunt B and not to secure B's silence, MI still applies)
-RAC-2 (legal detriment theory: Hamer v. Sidway)

PE
-R
-AC-1 (for time spent in box)
-AC-2 (for severed vocal cords)
[Note: no recovery for severed vocal cords under PE--not foreseeable by A.]

Restitution
-R
-Quick hit: Restitution a way around SoF.
-AC-1 (for time spent in box and/or severed vocal cords) (Is 500 grand too much? Value of restitution that necessary to avoid "unjust enrichment," not always equal to contact amount.)
-AC-2 (for taunting) (Value of restitution is limited by the counter-performance agreed-to by contract unenforceable for indefiniteness or SoF. If A receives contract price for time spent in box and/or severed vocal cords, A's recovery is maxed out. But taunting was not assented-to. Does it form the basis of a separate obligation? Could B have quit if he didn't like the taunting? The contract was unilateral--a promise conditioned on a performance, not an exchange of promises. So, B could have quit and would be entitled only to restitution for the time he had spent in the box before quitting and/or severed vocal cords.)
[Note: possible recovery for severed vocal cords under restitution--if B really could not have shut up without severing his vocal cords, doing so may constitute an enrichment of A.]

(sits and nods politely)

edit: honestly, it's interesting to see how you would organize an answer. I'm miles away from being there, obviously, but seeing the thought process is kind of helpful.

NoodleyOne wrote:(sits and nods politely)

edit: honestly, it's interesting to see how you would organize an answer. I'm miles away from being there, obviously, but seeing the thought process is kind of helpful.

You'll get there. I don't think it would hurt to take a weekend and read the sections of a good supplement that correspond to your classes's syllabuses.

manofjustice wrote:

NoodleyOne wrote:(sits and nods politely)

edit: honestly, it's interesting to see how you would organize an answer. I'm miles away from being there, obviously, but seeing the thought process is kind of helpful.

You'll get there. I don't think it would hurt to take a weekend and read the sections of a good supplement that correspond to your classes's syllabuses.

I plan on doing that a little later in the semester. My Contracts prof is giving us hypos with model answers after every "Chapter" and a midterm that he'll grade, so that along with the ton of work I plan on doing on my own will hopefully make me prepared come exam time.

fit2practice wrote:In the 1961 episode of the Twilight Zone, The Silence, a contract is made and I want to know if either party gave valid consideration making it an enforceable contract or would PE apply? Ignore the fact that the "contract" is a wager and thus illegal in their state, according to the wiki.

A and B are members of a social aristocrat's club and A cannot stand B's incessant, constant and obnoxious talking. A proposes a bet to B that if B lives in an enclosed glass box in the club's game room for one year without speaking and instead communicating all his thoughts on paper (for food, stuff to read, notes to his wife, etc), A will pay B $500,000. A puts a check on deposit in B's name, displaying a copy for all members of the club to view. A comes by to visit B at regular intervals as time goes by, taunting B that his wife is leaving him and offering smaller amounts to induce B to give up early, but B remains determined to uphold the wager.

After one year, B lives up to his end and hasn't spoken a word. B emerges from the box and holds his hand open to A expecting payment. However A is broke and was broke at the time of the contract believing B would never fulfill his end anyhow. In a twist unknown to A, B had actually severed his own vocal cords before entering the box, rendering himself unable to speak in advance believing he could never remain silent otherwise.

In this situation is the K utterly unenforceable? A never stipulated the means in which B was to remain silent, so does it matter that he severed his own vocal cords meaning he couldn't speak even if he tried? Is the "severing" count as consideration? How does it play in that A never had the money in the first place? Certainly, B suffered a detriment in severing his own vocal cords but A did not know of that detriment, but is he liable to B for the time spent in the box? Does promissory estoppel apply?

Sorry first week of 1L and trying to apply these concepts to something that was familiar.

As to the question of whether there was consideration, this is not even a close question. Each of the parties made a bargained-for promise to the other, and a bargained-for promise is valid consideration, period. Hamer v. Sidway is only a difficult case insofar as the promise was not exchanged in a traditional bargain context -- in situations wherein it appears the the promise was not bargained-for, courts will eye consideration with suspicion. But for instance, in Lucy v. Zehmer there was consideration, promising to name one's child after another has been held to be consideration, and a promise that if one survives an enemy occupation they will pay 10x what they receive today have all been upheld as valid consideration. Promises between family, friends, and mistresses and where the promise is indefinite, indeterminate or indiscernable are the only situations where consideration will be found wanting.

seeing these 1L case names makes me want to drink violently.

Gorki wrote:seeing these 1L case names makes me want to drink violently.

You mean like Edward forty handing a couple a Old English while kicking a baby?