On Apr 20, 7:32 am, Stan Brown <the_stan_br...@fastmail.fm> wrote:
> Thu, 19 Apr 2007 07:27:55 -0400 from Mike Jacobs
> <mjacobs...@gmail.com>:
>
> > If the paper you
> > were thinking about signing said in effect, "I promise not to sue you,
> > but if I change my mind and _do_ sue you, then, it's up to the court
> > whether this agreement means anything or not," it would be silly: what
> > incentive do you have not to go ahead and sue anyway, and see what
> > happens?
>
> Perhaps I'm missing something, but isn't that implicit in *every*
> contract?
Yes, of course it's up to the court, if presented with the issue, to decide whether every contract is valid or not. No contract would actually say that out loud, and everyone knows it is implied. That's why I said "in effect", not "in so many words" when paraphrasing the agreement in question. But that's not exactly what I was arguing.
> But even when both parties go into a contract in good faith, there's
> the possibility one of them will later have a change of heart and try
> to get out of it. One way to do that is by trying to show a defect in
> the contract itself.
But not every contract contains a clause that imposes additional burdens on a party in breach if that party attempts, unsuccessfully, to have the contract declared void judicially. Absent such a clause, the party in breach who unsuccessfully sues to overturn a contract is no worse off than if he had simply taken his lumps without trying to void the contract. That additional "in terrorem" clause is what I was discussing and is what gives him additional incentive not to sue to void the contract even if he winds up on the losing end of the stick.
> Or am I misinterpreting what you said?
I think so. My point was that absent some "kicker" that would penalize a party for trying to void an unfavorable contract, there is little or nothing that would keep that party from trying to get out of it on the slightest provocation, other than (as you said) good faith and the hopes of continued good business relations with the other contracting party. If the party signing the agreement has no prospect or desire of continuing to deal with the other party after the present deal is over -- as in OP's case -- those implied and unwritten incentives are lessened or absent. So in a situation like this it makes sense for the party proposing the agreement (the organizers) to insist on some more protection against suit than merely relying on the other side's good faith.
On a different plane, a similar conundrum arises in the personal injury arena with attorneys who promise their victim clients that if they lose the suit, the client will owe nothing, not even investigation expenses and court costs. I don't do that, because IMO it brings out of the woodwork the kind of prospective clients who want to sue over every little thing because they don't feel they have anything personal at stake if they lose other than the claim itself, so "there's no harm in asking." Economics and human psychology are closely interrelated even when both sides act in good faith, so I find that clients are more likely to feel invested in their own claim, do the work necessary to prepare, and agree to a reasonable settlement rather than insisting on trial, if they _do_ have something to lose if they lose.
> And is this "hold harmless" thing a contract anyway? OP was a
> volunteer at an airplane exhibit (as we learned, eventually), and the
> sponsoring organization wants him to sign away his rights to sue. But
> did I miss something: what consideration has that organization
> offered? Is "enjoyment" by a working volunteer a consideration,
> legally?
Well, if OP looks on it as "work", as if he's doing the organizers a favor for nothing in return, it's pretty clear he won't sign the agreement. However, throughout this thread I have been keeping in mind that most people who "work" as volunteers on rickety old airplanes or sleek racers do so as a labor of love, because it's their hobby, because they are fascinated with the romance of the golden age of aviation and so forth, and what they get out of it is the joy and thrill of participating, not merely spectating, at an event recreating -- or creating -- history. That's why I considered this to be a "recreational activity" that other people in OP's shoes might not only work for free to get, but might even pay money on top of that for the opportunity (as many do). I think of civil war re-enactor "volunteers" and such in the same light. As such, the consideration the organizers give for OP's agreement is allowing OP onto the airport grounds around the exhibit and allowing him to participate, which they do not have to do if he does not sign the agreement and which is therefore a legal detriment to the organizers sufficent to provde consideration.
Cheers,
--
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
No comments:
Post a Comment