Gratuitous Promises and Reliance

On Aug 23, 8:03 pm, Cy Pres wrote:
> "Stuart A. Bronstein" wrote:
>
> > If you agree to do something without compensation of any kind, it's a
> > gratuitous promise, and not legally enforceable. In other words, if
> > you receive no consideration for your promise, no contract is formed,
> > and you can't be held liable for failure to complete what you
> > promised to do.
>
> Unless someone reasonably relies on your promise, to their detriment, in
> which case an action for detrimental reliance or promissory estoppel
> might apply.

True. Such _equitable_ causes of action are sometimes called "quasi-contract" because they may apply in circumstances where contract law, itself, provides _no_ remedy, which is what Stu was talking about. The person claiming detrimental reliance or unjust enrichment on equitable grounds will have to prove _more_ than just that an unfulfilled, gratuitous promise was made, in order to recover, in other words.


> Actually, in the charitable context, detrimental reliance may not even be
> necessary.

That's because, in those states (such as MD) which recognize such a charitable right, the charity's cause of action against the deadbeat donor is considered to sound IN CONTRACT, not as an equitable matter of quasi-contract. The "consideration" given to the charitable donor is presumed to be the warm fuzzies he gets by donating to a good cause. Another way to look at it is that the act of "giving consideration" sufficient to form a binding contract includes not only the giving of a _benefit_ to the person receiving that consideration, but also includes the incurring of a _detriment_ as another form of the "giving" of consideration.

One common example given to law students of that kind of consideration is this story: a rich uncle tells a dissolute nephew that Uncle will pay Nephew a million dollars if Nephew quits smoking and drinking for a year. If Nephew takes Uncle up on that challenge and and mends his ways for a year, he can legally _enforce_ the promise by Uncle - not because Uncle incurred any personal _benefit_ from Nephew's altered behavior, but because Nephew incurred a _detriment_ (by refraining from doing something that, legally, he had every _right_ to do).

Another example involves prize contests. Putting aside for the moment the fact that such events are often closely regulated by the law (to prevent fraud and/or to make sure they are not a form of illegal gambling), if the contestant jumps thru all the hoops set up by the contest organizer he may have "earned" the prize (i.e. he may have given sufficient consideration to form a binding contract) by doing those silly things, incurring a detriment, even if the organizer has not himself gained any benefit thereby (aside from the "promotional and other consideration" they always tell you about in the fine print).

The charitable organization "incurs a detriment" in consideration of the donor's pledge when it adds that pledge amount into the total it thinks it has collected in its current campaign, and makes plans in reliance on that pledge amount -- both as to how big and fancy a new edifice they can construct with the existing building fund, and also as to when they can _stop_ hitting up _other_ potential donors to make that paper-and-tinfoil "Have We Reached Our Goal Yet?" thermometer tacked up on the bulletin board in the church lobby, burst out over the top.

How does that theory differ from "quasi-contract" and "detrimental reliance?" Search me. As a practical matter, what it means is simply, as Cy notes, that in those states, the charity does not need to _prove_ that they acted in detrimental reliance on the pledge (_after_ it was received) in order to stake its claim to the amount of the reneging donor's unpaid pledge. Such reliance is _assumed_ to form "consideration" (and thus, a binding contract) from the moment the pledge is given.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.

Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300

Joint Tenants with Wife and Daughter

On Sep 21, 4:40 am, Hank wrote:
> My daughter, wife and I purchased a house. My daughter lives in the
> house and pays all taxes and maintenance. My daughter put in 1/3 of
> the cost, my wife and I put in 2/3 of the cost. We have a Survivorship
> deed with all 3 names on it. What are the legal ramifications of doing
> this?

Um, you're asking what the legal implications are, now, _after_ you've already done the deed?

Wouldn't it have been better to inquire, _before_ making those arrangements?

You don't say what state you live in. State laws differ, so YMMV. Consult a local lawyer, preferably _before_ a dispute arises, to get the lay of the land as well as real, particularized advice. Be prepared to pay by the hour for this help. Nobody can give you an accurate opinion unless they really take the time to go through all your paperwork, analyze the facts and the law thoroughly, and discuss the matter with you in a back-and-forth meeting to get an idea of what your concerns and goals really are, and what you hope to accomplish.

Generally, though, being joint tenants with right of survivorship (JTWROS) means that each of you own an equal, undivided share of the whole, with equal rights to access and use it, and equal responsibility for its care and upkeep and the expenses of ownership; and that if and when one of you dies, the remaining 2 JTWROS will continue uninterruptedly to remain the sole owners of the whole. The property will not pass thru probate of any one of you, in other words; so you cannot give "your share" to your heirs in a Will (the existing joint owners, of course, will receive your former share to be absorbed back into theirs, automatically by operation of law).

But the arrangements you have made with your daughter, as to payment of taxes and upkeep, etc., may introduce complicating factors. Is there a mortgage? Or, is your daughter paying _you_ and your wife anything (rent-like) for her exclusive use of the house? You really need to talk to a local real estate lawyer to find out, and to get recommendations on how best to handle things from this point on. Otherwise, you're just whistling in the dark, and being reckless by continuing to act without knowing all you can about the potential legal consequences, don't you see? Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300

Keeping a check not addressed to you

On Sep 24, 8:37 pm, x wrote:
> If you're expecting a check in the mail, and you receive a check envelope
> that has your name wrong, do you have to send it back for correction, or
> can you legally open it and deposit the check?

Is it ALWAYS legal for you to do so? No. The usual "it depends" rubric applies. The entire factual context is relevant.

Is it EVER legal for you to do so? Sometimes. The usual "it depends" rubric applies. The entire factual context is relevant.

The law, by and large, is _not_ trying to be a series of "gotchas" with Draconian consequences for minor, inadvertent mistakes.

Nor is the law, by and large, supposed to create a "windfall" for a lucky person who, due to a minor technicality, gets to keep (or gets away with) something he should not have gotten.

What the law usually DOES try to look at and accomplish, is, under _all_ the relevant circumstances, WHAT IS THE JUST and fair thing to do? And, whether we are talking criminal or civil law, that means looking _objectively_ at all the circumstances to see whether a reasonable person, in your shoes, would have done the same thing.

> For example, suppose your name is Alan T Jones, and the check is addressed
> to Aan T Jones

Most likely a mis-spelling, no? Especially if they got the address right, and the amount of hte check is the amount you were expecting. Unless you know of the existence of someone named Aan T Jones, you are probably okay to go ahead and cash that, unless you know something you're not telling, that would provide relevant context and lead to a different conclusion. Don't ever forget the importance of context.

> or to Richard T Jones.

At your address? Or stuck together to the envelope with your name and address on it (that happens to me, and a neighbor, who get bulk mailings from the same company, sometimes)? Is "Richard" one of your aliases? Context, context.

> And it's the kind of check that you
> know will have the same name on the check itself as on the envelope.

How do you know _that_? How do you even know it's a _check_, until you open the envelope? We would need to explore _all_ the releavnt facts you knew, as of the time you were contemplating opening the envelope.

> What
> would be the legal implications of simply opening the envelope and
> depositing the check with your normal endorsement, Alan T Jones?

That depends. What did you KNOW, and when did you know it? Context, context.

> In other words, does the fact that you know the check was intended for you
> make it legal,

If you really _DO_ "know" the check was intended for you, that's probably good evidence in your favor, if there is some factual basis for this "knowledge" that you can articulate. If OTOH you "know" it's yours simply because (a) it fell into your lap unexpectedly and (b) you want to keep it, that is a different ball of wax.

> even though it superficially seems like opening mail not
> addressed to you

"Aan T Jones" is probably you. "Richard T Jones" is a tougher question. "George Smith," definitely not you.

> and depositing a check not made out to you?

If your intentions are TRULY innocent, and it turns out the check was _not_ meant for you, the worst that is likely to happen is that you will have to pay it back.

OTOH if there is even any sliver of doubt in your mind that it was intended for you, why are you asking us here on MLM for justification to keep and open and deposit it, instead of CALLING THE SENDER to confirm whether this check was in fact intended for YOU? Doesn't that seem like an easier, and less risky, approach? And doesn't the fact that you are even inquiring here, give rise to some suspicion that your intentions are NOT completely innocent, and that you are trying to see if there is a "gotcha" in the law which you can take advantage of?

That last one - my question, not yours - is pretty easy to answer. No, there _isn't_ any such "gotcha" windfall. If it's not yours, you will have to give it back. And if you keep it, under circumstances which would have put a reasonable person on notice that it was not yours, you may have to face additional consequences as well, including civil or criminal penalties. YMMV. TANSTAAFL.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300

Firing an Employee for Gross Misconduct

On Oct 9, 2:13 pm, John Macadoo wrote:
> Noob question.

Noobs welcome. That's how newsgroups stay alive. Visit early and often. Just keep in mind that new posts only get put up on the board every couple of days or so, when the moderator gets around to it.

> I was fired from a job 4 1/2 year ago for Gross Misconduct. That was
> during a period of depression, and way too much booze, leaving a story
> in my head that doesn't work now that I'm lucid and moving forward
> again.

I'm glad to hear you're getting it together again and doing well now. Good for you, keep it up.

> Gross Misconduct is commiting a crime on company property I
> understand.

Um, not necessarily. Google "gross misconduct" and you'll find a variety of definitions of the term.

From the Business Dictionary at http://www.businessdictionary.com/definition/gross-misconduct.html -

"gross misconduct" is "Indiscipline so serious (such as stealing, or work place violence) that it justifies the instant dismissal of an employee, even on the first occurrence."

Note that in this source, stealing or violence are given as _examples_, not requirements, for a "gross misconduct" finding by your employer leading to your termination. Your _employer_ (and, possibly, your union contract or other employment contract, if you have one) determines what conduct he believes is so "gross" as to be a fireable offense even on the first time you do it. Generally, though, with the rule in most US states being the so-called "employment at will" doctrine, in the absence of a specific contract the employer can fire you at _any_ time, for _any_ reason - he doesn't have to characterize it as "gross" or otherwise (unless your contract specifically requires him to so justify the grounds for your firing).

From Wikipedia at http://en.wikipedia.org/wiki/Misconduct -

* "Misconduct" is where something is seen as unacceptable but is not a criminal offence e.g. being late.
* "Gross misconduct" is where you can be dismissed straight away because it is serious enough and possibly criminal e.g. stealing or sexual harassment

Misconduct refers to an action, rather than neglecting to take action, or inaction which could be referred to as poor performance.[citation needed]

[edit] Examples of Gross Misconduct

* Being drunk on duty
* Illegal drug use at work
* Fighting
* Harassing people
* Stealing
* Subjecting people to racial abuse
* Cursing/Swearing at the officials in sports
* Cutting school (Truancy)"

Note again that many of the examples given in the Wiki (such as, racial abuse/epithets, swearing at officials) may not be a _crime_ but is certainly so frowned upon by social/etiquette rules that they may be considered fireable offenses by your employer.

> Would a lawyer be able to go and find out exactly what crime I was
> accused of,

Can't you just ask for, and get, a copy of your personnel file from your former employer? Or simpler yet, just _ask_ their Human Resources department to tell you what the grounds were for your termination?

> and if I actually did it?

Do you mean, (A) you _know_ what you were _accused_ of, but want to see if a lawyer could examine the evidence pro and con to give you _his_ after-the-fact opinion whether a sufficient case was made out to meet the state's burden of proof to convict you of some crime, _or_ the employer's (lesser) burden of proof to show "gross misconduct"? Sure, a lawyer could do that, but WHY would you pay someone to do that? It's probably _way_ too late to actually _change_ the outcome (i.e. to raise a court challenge to your firing), so, unless this past event is somehow creating difficulties in your _current_ life situation or job, why not let sleeping dogs lie? But, it's your money, if you want to spend it on that.

Or, do you mean, (B) you don't even have any recollection of what _type_ of thing you did, what behavior of yours allegedly constituted "gross misconduct" so as to get you fired? Now, _that's_ scary. Were you so drunk you didn't even remember what happened when you "came to" afterwards? Did nobody even _tell_ you what you allegedly did? I suppose there _may_ be some record of what you actually did, but, unless you pursued some kind of grievance procedure _back_then_ and _forced_ your employer to thoroughly document your file, chances are you wouldn't learn much by going back and digging, unless you really want your lawyer to spend a HUGE amount of time and money to find actual, live witnesses to what you allegedly did, and interview them. Anyway, that's my two cents worth.

--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300

How to Find a Good Lawyer

Ask your friends who have used lawyers, whom they would recommend as smart and trustworthy (at this point, regardless of what field of law or what subject matter). Then call those lawyers and ask them who you should go to, for your kind of issues. If your case is something they can handle, great. If not, ask for _their_ recommendations of colleagues who do this sort of law. When you get the same name from several independent contacts, that's your go-to guru. Call him or her and make an appointment. Ask about fees for the initial consultation (some initial consults are free, as a marketing come-on, other lawyers charge for their time regardless, which is also reasonable). In any event, once you hire somebody you will probably be paying by the hour for advice and other services, unless it is an accident case, in which most lawyers offer a contingent, percentage fee arrangement where you do not have to pay until the lawyer wins you some money from your opponent. The most crucial thing is to set up that first interview, where your lawyer can explain all of this to you in detail, and then, if you are happy with the proffered game plan, he can sign you up as a client. Good luck.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Blog is public information. Please send me an Email, by clicking on my Profile if you want to send me a private communication.
Unless I have agreed in writing to do so, I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.

Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300