For want of “credible evidence” of consideration, a California judge has ruled that an investor cannot enforce a contract to recover about $170,000 from a Korean businessman -– even if it was written in blood.

“Blood is the worst of all testimonies to the truth,” Orange County Superior Court Judge Corey S. Cramin said, quoting Nietzsche as he denied Jinsoo Kim's unusual breach-of-contract claim after a bench trial.

Kim argued that the agreement he made with Stephen Son during an alcohol-fueled meeting in a bar carried extra weight because Son penned it in his own blood. Son promised to pay back the money Kim had provided to two companies he controlled.

But Cramin found there was insufficient evidence of consideration –- a central concept in the common law of contracts -– that would make the blood-contract binding. Son had not personally guaranteed Kim's investment of $100,000 and two loans totalling another $70,000.

“Consideration must support every contract,” he said in a ruling from the bench, and “[T]he court will refuse to enforce a gratuitous promise even when it's reduced to blood.”

According to Kim, he has received no return on his investment in Son's companies. When the two Korean nationals met in October 2004 to discuss the debt, Son borrowed a safety-pin from a waiter and wrote in his blood,

Sir, forgive me. Because of my deeds, you have suffered financially. I will repay you to the best of my ability.

Cramin did not address Kim's theory that the consideration in the contract was his forbearance from suing Son over the debt. But the contract says nothing about Kim keeping the matter out of court and California case law holds that “the mere forbearance to sue without agreement to forbear ... does not constitute a consideration.” Wine Packing Corp. v. Voss, 37 Cal.App.2d 528 (1940).

Kim attorney Richard J. Radcliffe of Newport Beach may appeal. "We think the blood speaks for itself," he said.

The judge's Nietzsche quote comes from a passage in “The Antichrist” in which the philosopher, speaking through his Zarathustra alter ego, debunks martyrdom.

By Matthew Heller
8/15/07