Caveat Promissee: Nebraska’s “New Consideration” Test and the Anachronistic Statute of Frauds

Nearly a quarter of a century ago Professor Maurice H. Merrill made an exhaustive and analytical study of the Nebraska cases regarding suretyship. Reading his work on this subject leads to the conclusion that in most instances the rules of suretyship in Nebraska followed the views expressed by a majority of the other states and text writers. One of the areas in which Professor Merrill discovered confusion and need for greater clarity concerned the so-called leading object or main purpose rule, a doctrine which will take out of the Statute of Frauds a promise to answer for another\u27s debt. Professor Merrill wrote, The variety of the views presented and the irreconcilability of the cases suggest that it may be profitable to review all the Nebraska cases dealing with new promises in the light of the various theories. Such a survey might enable us to determine which view most adequately reflects the law of Nebraska ... Further, he concluded, ... a definite selection by the court of some one view as a basis for its new promise decisions seems highly desirable. The purpose of this article, written nearly a quarter of a century after Professor Merrill\u27s suggestion that our court select some definite view, is to determine whether it is now possible to state the Nebraska rule regarding the status and future of oral guarantees of another\u27s pre-existing duty. Incentive for this quest is furnished not only by lapse of time since the aforementioned research, but also by the recent decision of the Supreme Court of Nebraska in King v. Schmall. A. Introduction … Evolution of the Statute of Frauds-1677-1954 … B. The Problem … C. The Origin of the Main Purpose Rule and the New Consideration Test … The Four Basic English Cases … The American Doctrine … D. The Nebraska Cases … E. Conclusion … New Consideration Test-Gloomy Prediction … Main Purpose Doctrine--A Better Test? … The Future of the Statute of Frauds