Law and Magic Blog

Hostile Environment

CNN reports that some Hong Kong employees are trying to get back at the boss by paying for someone to put a curse on him or her. Starting cost: only six dollars a pop. Problem: the curse is non-reversible.

Blood Oaths: Still Not Enforceable at Law In California

Do you remember this story? Two Korean businessmen swore out a blood oath back in 2004 over a $170,000 deal. One didn't repay, the other decided to take him to court to enforce the promise, and lost. He appealed, and now an appellate court has upheld the lower court, ruling that, well, a blood oath isn't worth the paper it's dripped on. Here's a little more from Fox News. Here's a link to the opinion, Kim v. Son.

Here's an excerpt from the court's ruling.

Kim raises two issues on appeal: (1) Did the trial court erroneously fail to consider or apply Kim's forbearance as consideration of Son's blood agreement? and (2) Did the statement of decision adequately address the forbearance issue?
...

“Consideration may be forbearance to sue on a claim, extension of time, or any other giving up of a legal right, in consideration of some promise. ... “The slightest forbearance will suffice: ‘Even though the forbearance is for one day only, there is sufficient consideration as the law does not weigh the quantum.’ [Citations.]” ...Moreover, “The compromise of a claim, either valid, doubtful, or disputed (but not void) is good consideration, the claimant giving up his or her asserted right to recover the whole amount as consideration for a promise to pay a lesser amount. [Citations.]” ...

“However, if the forbearance has no value, it will not suffice....And relevant to this case, “If a claim is wholly invalid, neither forbearance to sue nor a compromise thereof can be good consideration....Here, the purported forbearance to sue cannot be good consideration because Kim's claims against Son were wholly invalid. As determined by the trial court, any claim Son personally owed Kim money was invalid. The statement of decision noted it was undisputed the corporations (MJ and Netouch) were valid separate corporate entities and those businesses received Kim's loans and investment money. The court concluded Son did not guarantee the money on behalf of the two corporations. He did not personally receive any of Kim's money. And, Kim does not dispute a shareholder/owner generally is not personally liable for the debts of a corporation.... Consequently, any debt collection or breach of contract claim Kim may have had against the corporations, could not be legally imputed to Son, individually. In other words, Kim's forbearance in filing a meritless lawsuit cannot supply adequate consideration for Son's gratuitous promise.

Moreover, Kim does not dispute the trial court's conclusion credible evidence established Son was not liable for fraud. Accordingly, his alleged forbearance to sue on the clearly unfounded tort claim would not constitute valuable consideration. We conclude the trial court properly decided Kim's lawsuit was based entirely on a gratuitous unenforceable promise, and as such, the court did not need to address the immaterial issue of forbearance.

Code of Civil Procedure section 632 states in relevant part: “In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial.... The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. After a party has requested the statement, any party may make proposals as to the content of the statement of decision....”

“A trial court rendering a statement of decision under Code of Civil Procedure section 632 is required only to state ultimate rather than evidentiary facts. A trial court is not required to make findings with regard to detailed evidentiary facts or to make minute findings as to individual items of evidence. Only where a trial court fails to make findings as to a material issue which would fairly disclose the determination by the trial court would reversible error result. Even though a court fails to make a finding on a particular matter, if the judgment is otherwise supported, the omission is harmless error unless the evidence is sufficient to sustain a finding in favor of the complaining party which would have the effect of countervailing or destroying other findings. A failure to find on an immaterial issue is not error....In issuing a statement of decision, the trial court need not address each question listed in a party's request. All that is required is an explanation of the factual and legal basis for the court's decision regarding such principal controverted issues at trial as are listed in the request....

Here, the trial court's statement of decision sufficiently delineated the factual and legal basis of the court's ultimate decision Kim failed to show the blood agreement was an enforceable contract or that Son defrauded him. As noted previously, the court determined Son, while extremely intoxicated, made a gratuitous unenforceable promise to repay what the corporations owed “to the best of [his] ability.” The court also made the specific finding there was no evidence Son had personally guaranteed the debt or showing Son received any of the money. Given this lack of evidence, there was no basis upon which to consider the issue of forbearance as a substitute form of consideration. If a claim is invalid, forbearance is immaterial. The court's failure to specifically discuss and reject the forbearance claim did not render the statement of decision inadequate.

The judgment is affirmed. Respondent shall recover his costs on appeal.

 

Sub Primes and Prayer

Time Magazine's David Van Biema discusses possible unintended consequences from the "Prosperity Gospel" and the subprime mortgage crisis in this interesting article. He begins,

Has the so-called Prosperity Gospel turned its followers into some of the most willing participants — and hence, victims — of the current financial crisis? That's what a scholar of the fast-growing brand of pentecostal Christianity believes. While researching a book on black televangelism, says Jonathan Walton, a religion professor at the University of California Riverside, he realized that Prosperity's central promise — that God would "make a way" for poor people to enjoy the better things in life — had developed an additional, toxic expression during sub-prime boom. Walton says that this encouraged congregants who got dicey mortgages to believe "God caused the bank to ignore my credit score and blessed me with my first house." The results, he says, "were disastrous, because they pretty much turned parishioners into prey for greedy brokers."

Thought-provoking and worth a read.

Former TB Sanitarium To Become Hotel

A former Louisville sanitarium is becoming a hotel, and the developer hopes it will also become a tourist attraction. The Waverly Hills Sanitarium, which treated tuberculosis patients in the last century, is reputed to be one of the "most haunted" places around, at least according to those who believe in such things. Check out a report from WLKY, which also notes that the show Ghost Hunters checked out the site but found no conclusive signs of paranormal activity. Here's more about the proposed hotel, from the Louisville Courier-Journal. So, if you book a room hoping to see a ghost, and you don't see one, do you get a discount on your room? Probably not; there's undoubtedly no guarantee that comes with the room ["Stay at Aunt Mary's Bed and Breakfast--free breakfast and your own personal ghost!"] It could be that there is a ghost, and you're just not sensitive to its presence, or it decided not to appear the night or nights that you stayed, for example.

Although that's an interesting thought--if ghosts are part of the ambiance, like an ocean view or golf courses, or peace and quiet, and the hotel is marketed to guests with that expectation, and a sufficient number of guests never actually experience paranomal activity, is there a remedy? Should there be? Maybe the result would simply be that fewer and fewer people stay there, just because if one is seeking a "ghostly" experience, one wouldn't get it at that particular hotel. ["Don't stay there, Caligula. It's not really haunted."]

St. Joseph and the Housing Market

One would not have thought that the mortgage mess and the sharp downturn in housing sales would have signaled an upturn in anybody's housing related business. But people who make and sell St. Joseph statutettes report an uptick in their business. Apparently it's good luck to bury a statute of St. Joseph, the husband of the Virgin Mary and patron saint of carpenters and house hunters (and those in doubt--he even covers buyer's remorse) upside down in your yard. I had heard of, but had forgotten, this tradition, until NPR reminded me this morning in a story on its Morning Edition. NPR's story emphasizes that the statuette needs to be buried near the "for sale" sign, and notes that at least one real estate agent sells the items. Hmm. Is there a conflict of interest here, or as one of NPR's interviewees points out, is there actually more of a commitment on the part of the agent to get busy and sell, sell, sell? You can read more about the practice in Stephen J. Binz, St. Joseph, My Real Estate Agent: Patron Saint of Home Life and Home Selling (Servant Publications, 2003). Amazon.com is even offering a two-for-one promotion: buy the book along with a St. Joseph statuette for a special price.

Contract Signed In Blood? May Not Make It Binding

One of my favorite law blogs, Lowering the Bar, reports on this lawsuit from 2007. The story even made the Wall Street Journal.

"On Monday, a judge in Orange County Superior Court ruled against Kim Jin-Soo, refusing to enforce a contract to pay him over $140,000.  Judge Corey Cramin ruled after a bench trial that there was no consideration for the contract, despite Kim's argument that the contract was binding because the defendant had written it in blood (or, as the Daily Journal put it, "in the muddy ocher of his own blood").

"Kim's lawsuit alleged that he had invested $140,000 in companies run by Mr. Son, but they all went out of business.  He said the two men met over drinks in 2004 to discuss the matter.  After apparently quite a few drinks, and some crying by one or both men (always a good time to consider drafting up a contract), Son allegedly agreed to repay the money Kim had lost, borrowed a safety pin from a waiter and wrote out a contract using his own blood.  `Sir, forgive me," Son wrote, according to a translation from the original blood-smeared Korean.  'Because of my deeds, you have suffered financially.  I will repay you to the best of my ability.'"

Now, in order to make their contract a binding one, parties must give consideration. Consideration can be just about anything, and can be minimal (law professors who teach Contracts often use a peppercorn as an example), but it has to be SOMETHING. The judge in this case said Mr. Son's blood wasn't adequate consideration. That's not the only problem here. In addition, the money was loaned to (invested in) the companies, not to Mr. Son himself, so Mr. Son wasn't liable for the debt.

Read the rest of the post (very entertaining, and includes some references to Nietzsche, so you can get your German philosophy fix) here.