CHARLES FRIED: Well, the courts have, in the last century or so,
eased up continuously.
And I wonder if any of you would regret that movement.
I don't.
So let me tell you about another case, which
is pretty typical of the way things have moved now.
This is in 1898 in Nebraska, Ricketts against Scothorn.
There was a grandfather, obviously a nice and generous man.
And there was his granddaughter.
He had several granddaughters.
His granddaughter was working as a bookkeeper.
He thought, I don't think she should have to do that if she doesn't want to.
None of my other granddaughters are working.
Why should she?
So he came to the place where she was working.
There were witnesses who testified to this.
And he handed her a piece of paper.
The piece of paper was a note for $2,000.
A note-- that is a written promise to pay money, to pay $2,000.
And until the $2,000 was paid out, she could get 6% interest
on that, which is $120 a year.
In those days, that may have been just enough
for her to figure she could afford not to work.
So the granddaughter did quit.
But after a while, maybe she wanted to earn more money at first,
but maybe after having worked for a while, she was just bored not working.
Or maybe she thought that people ought to work.
Then, after a while of not working, she asked her grandfather
if he minded if she went back to work as a bookkeeper.
He said, in effect, that's no problem.
I didn't give you the money to make you stop work.
I didn't ask you to stop.
There wasn't a bargain, an exchange.
It was a gift.
So you could work or not, just as you pleased.
Well after a while, the old gentleman died.
And here we go.
It's the same story.
The executives refused to pay the 6%.
And they refused to pay the $2,000 note.
The reason being that there had been no bargain.
There was no mutuality.
Grandpa got nothing in return for his promise to pay $2,000 and 6% a year.
He hadn't wanted anything.
He said so.
But in this case, unlike Kirksey and the not so nice brother-in-law,
the court reached a different conclusion.
The court said that this promise was enforceable,
that it made a contract, that it was binding.
The two cases-- Sister Antillico and grandpa-- are really rather similar.
They are promises, but not bargains.
In fact, the grandpa case is a little less moving,
because the granddaughter did go back to work.
She wanted to, and she did.
And grandpa didn't mind.
While Sister Antillico, we don't know what happened to her.
But she was out in the cold.
What the court said in Ricketts, the later case, the grandpa case,
was that there had been a promise.
And that the granddaughter had acted on it-- quit her job.
Temporarily as it turned out, but she did act on it.
She did quit her job.
Just like Sister Antillico had acted on her brother's promise,
and gave up her house, and went to considerable expense
moving to the house her brother-in-law offered her.
But neither of these actions-- neither quitting
the job in the case of the granddaughter,
nor moving to the new house in the case of Sister Antillico--
had been given in exchange as part of a bargain with the person who
made the promise.
They were done as a result of the promise.
The promise caused these actions.
As the law says, the person to whom they were made relied on the promise
to her detriment.
But that detriment, that sacrifice, was nothing
that the promisor had asked for.
It was not a detriment given in exchange for the promise.
And therefore, it really wasn't part of a bargain.
But from the sister's or the granddaughter's perspective,
they had factored the promise into their calculations.
They had relied on it.
And the courts came around to thinking that that should count for something.
It took some time, certainly.
But they came to that conclusion.
Remember in Hamer and Sidway, the case of the rich uncle and the nephew,
the court stretched a little bit, and said
that the nephew didn't have to refrain from smoking, drinking, gambling,
and swearing.
But he did.
And he did, as far as we know, in return for the promise.
And the uncle had asked for that return.
So there was a kind of an exchange.
There you had a bargain.
In Sister Antillico's case, and in grandpa's case,
there was nothing given in return.
And there was nothing sought in return for the promise.
But it did produce reliance.
And it did cost the person who was made some considerable loss.
And in these more modern cases, the considerable loss--
what's called detrimental reliance-- is often
enough to make the promise enforceable.