I don't know what this formulation means. Formalism about consideration? Nor do I understand what the argument about effect might be. Obviously it will never under any circumstances become common for charitable organizations to sue putative donors on their pledges. Whether such a suit is barred by contract doctrine or only by the brusque realities of existence hardly matters. That there might be a setting in which continued, apparent, induced adverse reliance might lead to obligation is not an earthquake whether or not some bunch of law professors has changed its mind about something.

We are much better off in this draft for being closer to material whose relevance is plausible, but still we might ask relevant to what? Why does all this to-ing and fro-ing make the slightest difference to anyone anywhere about anything? What are you telling us about this matter, assuming we can be made to care. You appear to be saying some provision in a document issued by law professors without portfolio or authority might be very bad for some imponderable reason except that it isn't because it doesn't do anything, which we could all see very clearly in the first place. What's going on? Explain to the reader why it matters, if you can.

A Sheep in Wolf's Clothing

The (Second) Restatement §90(2): A Holmesian Disaster?

Charity's Unique Role in America

§90(2): A Prudential Kick

The Evidence of Activity Level Effects is Unclear

Further Evidence of Non-Impact

§90(2)'s Saving Grace

In Application:

Conclusion

What source did you use to check this statement? It's not close to right. The Greek Gospels were written 600 years after the first flowering of the Roman law, and several thousand years after the first Sumerian and Babylonian legal materials and descriptions of judgment. Then there are the Egyptian materials, Cretan and ancient Semitic, ...

In general this paragraph makes little sense to me. A quotation from the Christian gospels is obviously not a reason to "question the authority of stare decisis" in a secular legal system. This one isn't really anything on which to base a conclusion of any kind: it's an obvious falsity. People serve two masters all the time, without the supposed emotional antagonism: they love both their work and the people in their families, they have multiple clients for whom they work with satisfaction, they manage conflicting responsibilities and obligations with intelligence and sensitivity. Not only is the language mere general metaphor, it offers no particular wisdom about human social life. So the actual conflict is not in general about serving two masters, it's about these particular two. They are, in turn, only metaphors, as your subsequent language discloses. As a foundation for a normative argument about a small matter of contract execution, this attempt to invoke some particular religion's vague holy writ is merely ludicrous, right?

Um, no. Where did that come from?

What do we get for 250 words, a quarter of the essay, from this supposed "dichotomy"? If we do not believe in God, whatever that's supposed to mean, whether we are non-theists, polytheists, agnostics, or secularists, what can all this mean to us and why should we care?

If no promise had ever been made even in form, could the "societal need" part of the "dichotomy" have forced a gift? Is a purely donative promise more binding if made to an organization for providing life-saving care to indigent humans than grooming to underprivileged poodles? Apparently the real underlying definitional confusion is the one that identifies "charity" with "God."

Though the justification for donating varies (ranging from purely altruistic to purely selfish motivations), what does not is that giving behavior is broadly beneficial and deeply effected by social influences. Grace Carman, Social Influences and the Private Provision of Public Goods: Evidence from Charitable Contributions in the Workplace, 2014 (Giving encourages more giving).

The citation doesn't prove the proposition, except insofar as everything in society is affected by social influences, tautologically.

If we value charitable giving, framed as a moral obligation to others, the law should reflect that through (1) enforcing charitable obligations or (2) providing charities with the formal mechanisms to make promises binding in their non-bargaining (and therefore consideration-scant) environment.

Nonsense. I value charitable giving highly, both inasmuch as I give away a large proportion of my in come and inasmuch as I run a 501c3 legal services operation that depends on donative contributions. I don't need, don't want, wouldn't accept a system of law that made purely non-reciprocal promises of donative contribution enforceable. I have no desire to sue people who pledge gifts they don't ultimately find themselves able to carry out, and I would never even consider contributing to any organization that used such a power if the law provided it. If you're going to make this argument, you have to do more than assert it, and against something like real critical testing, not through a word game.

The primary route to improvement of the essay is through the elimination of the unwieldy theistic mechanism. You want, for some reason of your own, to argue that gratuitous donative promises should be contractually enforceable. Grant that the reason lies in a particular set of theistic beliefs your reader is almost certain not to share, it is still apparent that you must find some common ground with such a reader or fail outright. The problem you are solving is how to meet the counterarguments, none of which is theological and all of which, collectively, represent the basis of the current outcome you are arguing, apparently, should be reconsidered by all courts everywhere. Doing so without stating and considering them is impossible. Hence the next draft should take up the ones you consider most important and deal with them convincingly.

A Biblical Dichotomy in Law

-- By ArgiriosNickas - 18 Feb 2016

The Dichotomy

"No one can serve two masters. Either you will hate the one and love the other, or you will be devoted to the one and despise the other. You cannot serve both God and money.” Matthew 6:24, New International Version. While there is always a formalistic hesitation to question the authority of stare decisis, even the most revered texts must sometimes come under fire. There is no more fitting a place to raise questions for a class titled “Law and Contemporary Society” then in the book that gave us the first recorded legal decision.

If scholars can seek new meaning and justification in the most revered text, then everything else must also be subject to revision. The dichotomy presented in Matthew 6:24 is a foundation from which to begin exploring the law and the ends it should serve.

Money

First, we must attempt to define the dichotomy. Money is defined as “something generally accepted as a medium of exchange, a measure of value, or a means of payment.” Merriam-Webster, ‘money’. Though seemingly fluid, that definition is stagnant: though the things money can be legally exchanged for vary over time and place, its purpose does not. A functional query always leaves us in the same place: if money is used in exchanges for goods and services, then the goods and services themselves define money.

God

The other part of the duality is, admittedly, more complicated. Our initial dictionary inquiry provides us with this: “the perfect and all-power spirit or being that is worshipped especially by Christians, Jews, and Muslims as the one who created and rules the universe.” Merriam-Webster, ‘God’. There is a striking problem here: if this were placed in the preceding paragraph it would be no less fitting. Would the Bible draw a dichotomy where none exists? More likely, the definition of this half has faded, as worship attendance and the importance of religion have declined, most notably along generational lines. 2014 Religious Landscape Study, Pew Research. Since a functional approach will get us everywhere and nowhere, perhaps we should adopt an originalist perspective to biblical interpretation and let Him define Himself: “And so we know and rely on the love God has for us. God is love. Whoever lives in love lives in God, and God in him.” 1 John 4:16, New International Version. The quote gives no context or vector to that love, but a further reading of the New Testament assures that it applies to our fellow man: “Love your neighbor as yourself.” Matthew 22:39, New International Version.

The dichotomy that materializes is a love of things (money) contrasted by a love of others (God). While that line has not always been clear, and while sometimes the two synthesize, the question remains: where in this dichotomy is the law and where should it go?

Application to Charitable Subscriptions

An area of law apt for reexamination is the enforceability of donative promises, particularly charitable subscriptions. Kirksey v. Kirksey, 8 Ala. 131 (Holding that donative promises are generally unenforceable). In Mount Sinai Hospital Of Greater Miami, Inc. v. Jordan, 290 So.2d 484 (Fla. 1974), the court held that a pledge made “in consideration of and to induce the subscriptions of others,” but for which no specific purpose was identified, was unenforceable. The court, limited by a formalistic approach to consideration, reached a decision that fell squarely on the ‘money’ portion of our dichotomy, emphasizing the defendant’s self-interest over a collective societal need. Though the justification for donating varies (ranging from purely altruistic to purely selfish motivations), what does not is that giving behavior is broadly beneficial and deeply effected by social influences. Grace Carman, Social Influences and the Private Provision of Public Goods: Evidence from Charitable Contributions in the Workplace, 2014 (Giving encourages more giving). If we value charitable giving, framed as a moral obligation to others, the law should reflect that through (1) enforcing charitable obligations or (2) providing charities with the formal mechanisms to make promises binding in their non-bargaining (and therefore consideration-scant) environment.

Solution 1: Switch of Presumption

Salsbury v. Northwestern Bell Tel. Co., 221 N.W.2d 609 (Iowa 1974), is an example of the first solution. In enforcing a written promise by the defendant to donate $15,000 to a newly formed college, the court cited public interest rationales as its justification for dismissing concerns of consideration and detrimental reliance, expressly adopting § 90(2) of the Restatement (Second) of Contracts. Since, most courts have not adopted any variation of the Restatement provision, and few have gone as far as the Salsbury court. For example, in Congregation Kadimah Toras-Moshe v. DeLeo? , 540 N.E.2d 691 (Mass.1989), the court declined to enforce an oral pledge. They stated that there was neither consideration, in the traditional ‘benefit/detriment’ sense, nor proof of reliance.

The law cannot rest on equitable estoppel because the mere addition of a donation to a written budget, which is as far as many charities will go until money is received, is not sufficient for a finding of detrimental reliance. An equitable solution might be to flip the Restatement provision on its head for charitable subscriptions: instead of “injustice” done to the promisee charity by nonperformance (Restatement (Second) of Contracts, § 90), the court should consider injustice on the promisor, i.e. a presumption of validity unless the promisor would be left inequitably harmed by enforcement, therefore emphasizing the group over the individual.

Solution 2: Formal Mechanism

The alternate solution is a formal mechanism to ensure contract validity. While few states have enacted devices that revive the function of a formal seal, such an instrument, limited in availability to registered charitable organizations, if adopted, would provide the same result as the most expansive reading of § 90(2).

While this analysis of charitable promises is brief, ignoring potential activity level effects and assuming that frequency of non-enforcement presents a need for redress, the biblical dichotomy of money and God can nevertheless serve as an analytical tool for examining and reforming doctrine.

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