“Someone hacked my e-mail.” “I was referring to something else entirely*, I never got the e-mail your client claims he sent.”
*“We had an illict relationship, and now this person wants revenge over the breakup.”
If you sue, you can subpoena ISP records that cast doubt on the “I never got this e-mail,” and subpoena the defendant’s hard drive to prove that he DID get the mail and read it; the fact that he REPLIED to the e-mail accusing him of lying about the donations with “You nailed me,” casts grave doubt on his claim that he was referring to an illicit relationship.
And in a civil suit, the plaintiff must only prove his case by preponderance of the evidence – basically, is his the more likely story?
That still didn’t make it clear. As a lawyer, I’m sure you know the importance of that when making a point.
But it’s a minor point. I still say the ethicist is correct in sticking to his area of expertise-- ethics, and not the law. I would not be surprised if he was specifically forbidden to give legal advice in his column.
It reaches a contract that “by its terms is not to be performed within one year from the making thereof.” Cite. This agreement contains year-to-year requirements and thus cannot be performed within one year. Off the top of my head, I would side with Oakminster’s original view that this agreement is legally unenforceable (assuming that there is not an email trail establishing its terms in writing at the outset).
Ethically, I think it’s a betrayal of the friendship.
Can anyone comment on the validity of a contract based on my mistaken reading of the OP?
Can you have a contract that says “I’ll give $10,000 to the charity of my choice if you give $10,000 to the charity of your choice”? Let’s say it was in writing. Could I collect damages if you don’t give anything to your charity?
I didn’t recall that tidbit from my long-ago classroom days.
But even so, i don’t agree it qualifies. Their agreement was for one donation, one time. The next year they communicated again, and agreed to do “the same deal” again. And so forth. So I don’t agree this was a case of year-to-year requirements.
Here is what the original letter in the New York Times said:
I don’t see how you can say this contract contains year-to-year requirements. They made a deal to donate to charity. And each of the next four years they made another deal. According to this description the contract called for one donation. The fact that a year later they agreed to make another donation under the same terms doesn’t make the original contract a multi-year contract.
ETA: Just like Bricker said.
from Wikipedia:
but, upon reading the OP closer, this was not a four year, or even ongoing, arrangement. There were four separate contracts, each could easily be performed within a year.
ETA: Just Like** Bricker** and Alley Dweller said
Let’s say we make a agreement. I give you $100 and you do an Irish jig.
You can’t accept my $100 and then say “Why the hell do you want me to do an Irish jig? It’s of absolutely no benefit to you and you aren’t even paying attention.” Why I want you to do an Irish jig is my business and I don’t have to explain it to you. Similarly, if you do the Irish jig first, I can’t say to you, “You’ve got more money than you know what to do with, why the hell do you need my $100? You’ll probably just throw it away!” I agreed to give you $100, why you want $100 is none of my business.
If you have a problem with doing what I asked, don’t agree to do it. Consideration is getting you to do something (or refrain from doing something) that you wouldn’t have otherwise done (or would not otherwise have refrained from doing). After accepting the terms, you don’t get to say that you don’t think my reason for wanting you to fulfill your end of the bargain is good enough.
For some bizarre reason known only to me, it was important to me that you give $10,000 to charity. And for some equally bizarre reason it was important to you that I give $10,000. Neither one of us cared which charity. We agreed to satisfy each other’s needs.
Ok, but in this offshoot of the original question I give you nothing, and you give me nothing. You haven’t been damaged in any way if I don’t hold up my end. I didn’t gain anything. Aside from the breach what is there to sue about? Could I be forced to give $10,000 to a charity under those circumstances?
Got it. Agreed.
In the chocolate/flowers example, you didn’t give me anything (you sent the flowers to my sweetie). You haven’t been damaged by my failure to send chocolate to your sweetie, right?
In the charity example, I give $10,000 to charity that I was not planning to give. I didn’t take a vacation or I didn’t make an investment or I didn’t give my children a birthday present expecting that if I did this, the charities of the world would be $20,000 richer. I shelled out $10,000 in reliance on your promise.
Again, I gave you what you wanted. You wanted me to make a donation to charity. You got your wish. I followed your instructions to pick a charity and send $10,000 there. You agreed to grant my wish in return. It’s time to do it.
In the chocolates example you would have benefitted by my paying for your gift. In the case where there’s no exchange of payments the two parties have simply agreed to perform two unrelated acts.
I’m not a lawyer, but this certainly doesn’t seem like a simple contract involving an exchange of goods or services of comparable value. There is no exchange between the two parties of anything. However if you can turn a wager into a valid contract by calling it a ‘derivative’ then there’s probably a way to make something like this into one also.
In some states, a charitable pledge is enforceable without consideration - does anyone know if New York is one of those states? I’d be okay with a court treating this as a charitable pledge since the duped individual was on the board of the art museum, which is different than him just being some guy off the street completely unrelated to the art museum in any way.
I think there would be problems proving damages under contract law, but maybe not under some quasi-contract or equitable theories like promissory estoppel or unjust enrichment. It would make a great law school exam question, though.
It seems different to me. I’m not entirely sure I can enunciate why. It seems to be a combination of factors. First, in the case of the chocolatier, selling chocolates is his job, so he has some extra ethical responsibility there to provide the buyer with the product he paid for? Whereas, giving to charity it just a nice thing that people do.
Second, the girl’s an person, while the museum is an institution, and it seems more unethical to harm a fellow human being than some corporate institutional structure. I don’t know why that is. Maybe it’s because the harm is more concentrated? Maybe it’s because of the difference between direct and indirect harm? Maybe it’s just that a girlfriend feels bad when she doesn’t get her valentine’s day gift while a museum as an entity can’t feel anything at all.
Third, the guy who’s girlfriend it is has a greater direct interest in his girlfriend than the guy has in the museum? So, he’s harmed more directly?
I don’t know if any of these are satisfying distinctions, or even coherent ones.
It is a minor point. FTR though, the NYT Ethicist role has been rotated through a number of columnists. Some of them have quoted lawyers. Chuck Klosterman has penned the column for a little over a year. The NYT should run a correction as he muffed the legal issues. If the Klosterman was smart, he’d include such a correction in an upcoming column - more material is good!
I ask again.
I would think a phone call followed by a cooling off period followed by another phone call should precede a visit to a lawyer. But again I ask: what sort of costs are we discussing? Sending $10,000 into the ether for the sake of gaining a $36,000 donation to an art museum would be defensible I suppose, though it strikes me as inefficient. Letting your friends know about an unreliable person OTOH, seems like a public service.
Took me a while to get back to this, but here I am.
I don’t think this answer really addresses my question. Of course performance is consideration, but is there valuable consideration if there is no benefit to either party to the contract?
I had thought not, but the Restatement (Second) of Contracts makes it clear that the doctrine I had in mind has been abandoned:
§72 "(1) To constitute consideration, a performance or a return promise must be bargained for. (2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise… (4) The performance or return promise may be given to the promisor or to some other person.
§79 “If the requirement of consideration is met, there is no additional requirement of (a) a gain, advantage, or benefit to the promisor…”
I still have one quibble, though, based on §90: “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”
What injustice? Mr. Museum gave $10,000 to the Opera; having done so, Mr. Opera’s donation is immaterial to Mr. Museum – he didn’t even know about it for four years! Where is the detrimental reliance? But I guess that doesn’t hold water.
I don’t think it does. He relied on Mr Opera’s representation. You can’t vitiate that reliance by pointing out he relied on it so much he didn’t check.