[HN Gopher] Peppercorn (law)
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Peppercorn (law)
Author : thinkingemote
Score : 50 points
Date : 2023-03-13 12:16 UTC (10 hours ago)
(HTM) web link (en.wikipedia.org)
(TXT) w3m dump (en.wikipedia.org)
| astrea wrote:
| Is this like in Breaking Bad/Better Call Saul when he would ask
| for a dollar so then they would then have lawyer/client
| privilege?
| mytailorisrich wrote:
| Except that, being Jimmy, this is not for the benefit of his
| client but so that he is entitled to further fees, share of any
| settlements, etc.
| apollo_mojave wrote:
| This is a bit of fiction. In most jurisdictions in America, an
| attorney has an obligation of confidentiality to a potential
| client during an initial consultation. That's true even if the
| client or attorney decline to formalize the relationship later
| on. Anyway, that's the ethical rule as applied to the attorney.
|
| The evidentiary privilege also generally applies in situations
| where a person is consulting with an attorney and reasonably
| believes the information exchanged in the consultation is
| confidential. So in the Breaking Bad episode, Saul didn't
| really need the dollar to magically "seal" the conversation and
| have it be treated as confidential.
|
| Interestingly, confidentiality (returning to the ethical rule,
| as distinguished from the evidentiary privilege) *may* be
| waived by an attorney to prevent reasonably certain loss of
| life or substantial bodily harm. Note, the attorney *may*
| choose to waive confidentiality -- but is not required to!
| bena wrote:
| I think in both situations, further consideration is needed
| because of the nature of the existing relationships. Kim and
| Jimmy are throughout the show at the very minimum, friends, a
| lot of their conversations happen as friends. You can't just
| claim "consultation" to privilege a conversation. The nominal
| fee is to distinguish this conversation from others they
| have.
|
| Same thing with Saul and Walter. Up until that point, they
| were speaking as hostage and kidnapper. So to distinguish the
| change in the relationship, he takes a nominal fee. Now they
| are a lawyer and his clients.
| cameron_b wrote:
| yes, similar. The $1 is the "skin in the game" that makes the
| lawyer "hired" making the "other person" into a client
| jimnotgym wrote:
| I guess someone was intrigued by my talk of peppercorns in the
| banking thread
|
| https://news.ycombinator.com/item?id=35134552
| apollo_mojave wrote:
| Just remember, also, that common law in the area of contracts for
| goods has largely been replaced by the Uniform Commercial Code,
| which has a different way of approaching these issues.
| james_in_the_uk wrote:
| English common law of contact is alive and kicking. Source:
| Chitty on Contracts
| Grothendank wrote:
| how does it approach these issues?
| jimnotgym wrote:
| In which jurisdiction? Certainly not in the UK where
| consideration is still necessary
| chatmasta wrote:
| I have a family member who bought a house for $1 because it was
| about to be destroyed. He then cut the three-story house in half,
| got a permit to close traffic in the city for the day, and drove
| it on a truck to its current location, where he's lived for the
| past 50 years.
| mjklin wrote:
| The book "Houses to Go" by Robert Williams has info on how to
| do this.
| MisterTea wrote:
| I'd be curious to know how much the savings were vs building
| new at the time.
| girvo wrote:
| My Dad was a house-mover for years, back in NZ, when I was
| growing up. Driving trucks with houses on them around the north
| island, was a lot of fun as a kid!
| _rm wrote:
| This is actually a useful legal rule to know, for everyone.
|
| An agreement isn't binding unless both sides get something. The
| "peppercorn" is the legal minimum, but this is still the reason,
| for instance, that saying "yes I promise to do X" doesn't by
| itself create contracts all over the place. A trade, even if it's
| only nominal, must take place.
| mminer237 wrote:
| Technically, you don't even have to get something yourself
| either. Just requiring the other party to do or not do
| something is enough even if it doesn't materially benefit you
| at all.
|
| The law school case demonstrating this is _Hamer v. Sidway_ :
| https://matthewminer.name/law/briefs/1L/1st+Semester/LAW+505...
|
| There, an uncle promised to pay his nephew the equivalent of
| $170,000 if his nephew promised to not drink, smoke, or play
| cards or billiards, and the court upheld the contract.
| [deleted]
| ElfinTrousers wrote:
| Many many years ago I bought a friend's old car for $1, saving
| her the trouble of junking it and giving me some semi-working
| wheels. I actually paid about 80 cents too much for that car,
| but that's neither here nor there.
| gnicholas wrote:
| So the notion of a peppercorn is that both sides need to get
| something in order for a contractual agreement to be binding.
|
| However, a bare promise, with no consideration flowing in the
| opposite direction, can still be legally enforced under the
| doctrine of "reliance". The details vary by state, but the basic
| concept is that if one party makes a promise and the other party
| _reasonably relies_ on that promise to its detriment (i.e., buys
| raw materials to build something for the promising party), then
| the promise can be enforced. This doctrine is known as
| "promissory estoppel" or simply "section 90 reliance".
|
| 1:
| https://opencasebook.org/casebooks/3665-contracts/resources/...
| tialaramex wrote:
| The problem with promissory estoppel is that the promise can be
| terminated.
|
| Suppose in 2017 I promised you can graze your sheep on my
| field. Today, desiring to now keep cattle, I tell you that from
| next spring (so 2024) I'll have cows on this land, so you'll
| need to find somewhere else for your sheep.
|
| Courts won't buy the theory that I'm estopped. It was
| reasonable for you to rely on my promise yesterday, it'd be
| reasonable tomorrow - but a year after you received notice? Not
| going to fly.
|
| And the problem with many Peppercorn contracts is that they're
| about super long term situations, such as long leases, where a
| 125 year period is _normal_ even though that means the initial
| contracted parties - if human - will likely be long dead by the
| time the term ends even if it isn 't extended. Thus, we need to
| ensure the law recognises that this is permanent, or at least,
| very long term.
| gnicholas wrote:
| Sure, incurring additional detrimental reliance after notice
| of revocation is not compensable, but that doesn't mean that
| I couldn't recover -- even under your hypo.
|
| For example, if I was offered a long term grazing contract in
| 2021 at favorable rates, and I passed on it because I was
| able to graze with you, I could claim that the 2021 act was
| reasonable reliance and that if I have to pay more for a
| grazing contract now, I should be able to recover the
| difference.
|
| Of course, the landowner would argue that it isn't reasonable
| to pass up on a deal on grazing without first checking with
| the landowner to make sure the deal was good for the
| foreseeable future. This would all come down to facts and
| circumstances (as all reasonableness determinations do),
| including the duration of the historical practice, whether
| anything material had changed since then, etc.
|
| Is it better to have a contract? Absolutely. But as a
| seasoned lawyer will tell you, it's possible to kill a deal
| by papering it to death. A rancher might put it differently:
| don't look a gift horse in the mouth.
| tialaramex wrote:
| Although I have always been a cash buyer because I don't
| like to owe people money, most "home owners" have a loan
| secured on the home, a mortgage, and mortgage lenders have
| rules about what they will or will not lend against, based
| on prevailing wisdom at the time the loan is made.
|
| For the lender, the cost of lost business if some customer
| can't buy a home isn't a massive concern, and most likely
| unless that lender is particularly stubborn and others are
| not, that customer would get turned away everywhere, so the
| effect is that homes you can't get a mortgage for are less
| valuable or even outright unsaleable.
|
| So it actually doesn't matter so much what you think as
| seller, or what I think as buyer, the most powerful
| sentiment is what third party lawyers working for the
| lenders think. If the lender (or their lawyers) don't like
| your promises, too bad, you can't make that work.
| gnicholas wrote:
| Was this meant as a reply to this thread? I'm not quite
| seeing the connection.
| jkaplowitz wrote:
| It's important to realize that this varies a lot between
| countries. The rule we're discussing is from the English common
| law tradition, but contracts where only one of the parties has
| any obligations are legal in the many countries which use the
| civil law system with origins in mainland Europe.
|
| In North America, the main places where the civil law system is
| in use for these types of matters are the Canadian province of
| Quebec, the US state of Louisiana, and Mexico. Worldwide, the
| predominant system varies by geography, but the civil law system
| is actually more prevalent globally than the common law system.
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