« on: December 08, 2008, 10:10:53 PM »
Let me know if I'm way off... First post from a First Year
The consideration for the monthly check was S's forbearance from seeking damages/compensation at the time of the accident. So S suffers legal detriment in exchange for the check, which you would reasonably expect him to have reliance on, etc..
I think the whole "wheeling" him in is to throw you off("red herring"?) so you think this is the consideration for the check. It's not b/c he gets check independent of appearances.
At the time of the accident, S could have sued for unjust enrichment or sought alternative avenues of compensation that may or may not be available 10 years later.
I'm not sure this k falls w/i SOF because it would be possible to perform this within a year. The payment period is month-to-month, and conditional to the company being profitable. The way it is worded, one could interpret that once the company is not profitable, they are discharged from their duty to pay. This event could theoretically occur the following month. I thought that in order for a k to fall w/i SOF, it must be impossible to complete in a year. But you could always argue it all.
Material Benefit Rule
I would be cautious about using this as the top arguement, because sec.(86) isn't universally accepted (And for good reason). One problem with sec.86 is that a promise has to first be made, then it can be enforced. So basically, ungrateful people who don't acknowledge a benefit are not obligated to anything, where considerate people that want to return the favor get penalized. I would just try to find an alternative before going this route.
I'm not really sure how these other facts play in, Gotta think about it..