Closing argument -consideration 英美合同法

Good afternoon,everyone! I amXX, counsel of defendant, and I’m going to make the closing argument.

May it please the court, counsel, ladies and gentlemen of the jury.

I want to ask some questions if you don’t mind. Did you ever say such words to a little boy or little girl “ If you don’t cry, I will buy a room of candies for you” or “ If you make progress in the final exam, I will take you to the Disney.”? Do you think it’s a contract or an unilateral encouragement or incentive? Do you intend to be bound by such words when you just want to encourage the naughty kid? Can you benefit from such promise? Did the little boy or little girl suffered any loss from such words? Maybe you can answer these questions more firmly after listening to my closing argument.

Let’s review this case. My client, Ms. Sidway, who was the executor of William E. Story, received the claim for $5,000 and interest from the 6th day of February, 1875 by the plaintiff, Ms.Hamer. Ms. Hamer made such claim because she acquired this asset through several mesne assignment. My client was shocked to find that the diligent uncle Mr.William E. Story promised to his nephew William E. Story, 2d that if he would refrain from drinking, using tobacco, swearing and playing cards or billiards for money until he became 21 years old, he would pay him a sum of $5,000, 22 years ago. The nephew wrote to his uncle when he arrived at 21 years old informing that he had performed his part of the agreement and had become entitled to the sum of $5,000. But the uncle Mr.William didn’t pay his nephew before his death.

The issue of this case is whether the promise constitutes a contract and whether the consideration exists. There are several points I want to remind you.

First, a promise is not enforceable by way of court action unless it is validated by consideration or a substitute of consideration. Consideration is a bargained-for-exchange for a legal value. Two essential elements of consideration are (1)legal value, and (2) bargained-for-exchange. The legal value may consist either in some right, interest, profit, or some forbearance, detriment, loss and so on. In order to constitute consideration, the detriment to the promisee or benefit to the promisor must be bargained for and given in exchange for the promise.

Second,applying this rule to this case, the promise is not enforceable because there is no consideration. It’s obvious that the asset $5,000 satisfies with the first element---legal value. But this promise can’t satisfy the second element---bargained-for-exchange. The promisee, that is the nephew William E. story, 2d, refraining from the use of liquor and tobacco was not harmed but benefited. He quit bad habits and his health benefited by accepting such promise. As Ms.Hamer said in her testimony, the promisor, that is the uncle William E. Story didn’t benefit from this promise. According to William E. Story’s letter to his nephew, we can see that he worked very hard to earn money, opening the grocery store early, closing late, sleeping in the fourth story of the building alone, but he promised to pay his nephew $5,000 if his nephew quit some bad habits. How can you say that this uncle benefited form such promise? It may be that the uncle William was morally bound to keep his promise; but a gratuitous promise, will not be enforced by courts of justice, no matter how strong may be the motives, or even the moral duty. Therefore, the contract was without consideration to support it, and, therefore, invalid.

Third, even if there is a contract, this action would be barred by the Statute of Limitations in New York. Even if William ever had a cause of action against the uncle William, no one claimed the right for $5,000 in the past 12 years. According to the Statute of Limitations in New York, the time limitation for contract or collection of debt on account is only 6 years.

Last but not least, the relationship between the uncle and nephew was a mere promise to make a gift. As we read between the lines of the letter as one of the evidence, we can find that this promise was not that he would pay him that amount for any service to be performed for the uncle, but that he would give him that amount as a gratuity, as an incentive to his nephew to become a sober and worthy man, free from evil and useless habits. In the uncle’s letter there is nothing reflecting that he recognized any legal liability or binding contract upon which he regarded himself as indebted to his nephew. On the contrary, I want to remind you, the uncle William treated the matter as a promise to make a gift at that time, and he in effect refused to perfect the gift by delivery, but insisted on retaining it under his own

dominion and control. This evidence can demonstrate that there is no valid contract, and it can prove that this transaction was a mere promise to make a gift. The nephew also regarded it because he consented to his uncle’s letter. The uncle did not use the word “trust”, or state that the money was deposited in the name of William E.Story,2d, or in his own name in trust for him, so it’s hard to recognize the existence of trust.

We have demonstrated, with convincing, credible, and consistent witnesses, evidence, that there is no contract between William E. Story and his nephew William E.Story 2d, and the promise is not enforceable because it lacks of consideration. Even if there is a contract, plaintiff’s action would be barred by lapse of time. We hope the jury would return the only verdict in favor of defendant.