The Language of Law School This page intentionally left blank

Transcript 4.9 [7/4/13]
Prof.:
[ . . . ] 
Why does the court say there is no consideration in this promise?
Yes, Ms. S.?
Ms. S.:
Because there was no- no exact agreement to forbear at this time, there
was no exact reason to forbear.
Prof.:
Right. So the court, the court acts as a (). What would we call this kind of
promise?
Ms. S.:
An illusory promise.
Prof.:
It’s an illusory promise. This is an illusory promise. 
[ . . . ]
 Now, could
his promise of forbearance have constituted consideration? Is the
money- it’s very important to understand what this case stands for. Is it
standing for the proposition that there’s no way that a promise to
forbear by a person in the plaintiff’s position () constitute consideration
for the- for the wife’s promise? Or is it simply that on these facts, it
simply didn’t happen? Which one? In other words, could there have
been adequate forbearance of a promise? Could there be a promise of
forbearance to constitute consideration? Mr. H.?
Mr. H.:
Well, yeah. Certainly, I mean, if it were bargained for that would- he
would have said, “If you sign, if you endorse this, I will forbear for two
years. I give you that promise.” If it was nothing bargained for then it
(wouldn’t) be a consideration.
Prof.:
Well, forbearance of a certain, for any legal right- and that was a clear
lesson of 
Hamer v. Sidway
 and 
Fiege v. Boehm
. But forbearance (of) a
certain legal right constitutes- can constitute consideration. Now, it did
not in this particular case, because to do so he must give up something.
And he worded it in such a way that he still retained total discretion, and
Mr. H. is exactly right (). If he’s going to make her promise, and through
that promise, have (a) bargained for exchange, (if) it’s going to be
forbearance to assert the demand for payment, you’re going to have to
put a time on it. No matter how long it’s got to be in there because
otherwise he’s still got the right to demand payment immediately. So
they didn’t do it that way. It was not consideration on the facts in this
case because he did not agree to forbear for any certain period of time.
He still retains total discretion. 
[ . . . ]
First, note here the professor’s emphatic repetition of a technical category, “illu-
sory promise.” In a sense, teaching the students how to apply the law to facts and
teaching them the technical doctrine itself are here elided. This is not at all

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Similarity
uncommon throughout the transcripts. One important way law is taught is through
its application, by example.
Returning to our primary point, we can also notice that in this excerpt the
professor urges the student to compare the facts in the case being discussed to
those of other cases. In the previous cases, a promise to forbear had been found
to constitute adequate consideration, so that a valid contract was formed. A prom-
ise to forbear in the case now being discussed was not viewed as adequate. The
professor is pressing the student to examine the facts in each case to discern the
legally definitive difference. A first pass reveals one difference: the promise here
did not actually limit the promisor’s discretion. The professor then goes on to
push the contrast still further, saying of the case at hand, “Well, in fact he actu-
ally did forbear for two years after the promise. So why wasn’t that consideration?
Certainly good enough in
 Hamer v. Sidway
. Why weren’t the actual two years of
forbearance, to insist upon paying the note, consideration?” (7/4/14). Here the
professor is demonstrating to students that there are multiple possible points of
analogy and that each must be examined for key similarities and differences.
This excerpt also highlights the way particular cases come to “stand for” legal
principles, through this process in which law is applied to facts. The professor
stresses the point here in order to ensure that students take the right lesson from
the case. On the one hand, it could be that a promise to forbear would never suf-
fice for contract formation. On the other hand, the case could stand for a more
limited legal principle: that when a promise to forbear actually leaves the promi-
sor with total discretion, it will not suffice for contract formation.
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 Figuring this
out requires careful parsing of the backbone of law as it is applied to facts through
several cases, as well as examination of the potential analogies among them. Of
course, when courts engage in this process, law is not only applied but also cre-
ated. Students follow their professors’ lead, engaging as well in this process of
analogical parsing: