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Consideration (or lack thereof) is thicker than blood

Today’s legal-writing tip: When writing a contract, don’t bother to write it in blood. A contract written in blood is no more enforceable than a contract written in ink. So held the court in Kim v. Son, No. 06CC02419 in the Orange County, CA Superior Court.

Here’s the story, as reported by Lowering the Bar: Mr. Kim invested $140,000 in companies run by Mr. Son. When the companies went belly-up, Messrs. Kim and Son met over drinks to discuss the matter. Mr. Son, apparently feeling bad about Mr. Kim’s loss, pricked his finger with a safety pin and wrote—in blood (and in Korean)—“Sir, forgive me. Because of my deeds, you have suffered financially.  I will repay you to the best of my ability.” Unfortunately for Mr. Kim, the promise was not enforceable (according to the Orange County Superior Court), because there was no consideration for the promise.

Drafting guru Ken Adams hypothesizes a scenario whereby Mr. Son includes some useless verbiage about consideration. Ken concludes that the verbiage would not have made a difference, because there was no actual consideration to support the verbiage.

But in Louisiana, the result may have been different. Louisiana law recognizes the “natural obligation,” which “arises from circumstances in which the law implies a particular moral duty to render a performance.” La. Civ. Code art. 1760. And “[a] contract made for the performance of a natural obligation is onerous.” La. Civ. Code art. 1761. So, if we change the names of Kim and Son to Kimbreaux and Sonnier, and place the blood-written contract in, say, the Napoleon House, then Sonnier may have had a natural obligation to Kimbreaux, making his blood-written promise enforceable. But the blood would not have made any difference—a Bic pen would have done the job equally well.

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