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< | A Biblical Dichotomy in Law | >
> | The (Second) Restatement §90(2): A Holmesian Disaster? | | | -- By ArgiriosNickas - 18 Feb 2016 | |
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< | The Dichotomy | >
> | Charity's Unique Role in America | | | | |
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< | "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. | >
> | The role of charity in American society is unique: Americans pay less in taxes as a percentage of GDP than virtually every developed country, but contribute more to charity per capita than any other country. Porter, 2012. | | | | |
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> | §90(2): A Prudential Kick | | | | |
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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, ... | >
> | Within this American tradition of charitable giving, the 1979 Restatement (Second) of Contracts attempted to address historical unenforceability of charitable subscriptions head on. The (Second) Restatement removed the requirements of consideration and detrimental reliance for charitable subscriptions. Restatement (Second) of Contracts §90(2). | | | | |
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< | 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? | >
> | The change is an example of Holmesian thought in application: the Restaters reflected on contract formalism – traditional promissory estoppel and consideration – and its application to a beneficial social function, charity. In other words, they attempted to facilitate a desired outcome, an increase in charitable giving, by modifying the legal framework surrounding it, in light of formalist hindrances discovered through reflection on the previous regime. The issue with §90(2)) lies not in the methodology, but in its applicative sagacity: whether the provision accomplishes its intended purpose or whether it has the opposite effect, harming autonomy interests and discouraging charitable pledging due to fear of state coercion. | | | | |
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> | The Evidence of Activity Level Effects is Unclear | | | | |
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> | An inquiry to settle the debate should start with an attempt to identify activity level effects, if any, of adoption. The most suitable data is published annually by the National Center for Charitable Statistics: it records the ‘average charitable contribution (ACC) per tax return as a percentage of adjusted gross income (AGI) per return’ by state, as a percentage and within a comparative quartile distribution. There are some limitations: the data does not extend back to the adoption of §90(2), and the rate of filers that itemize deductions varies by state. Assuming that public saliency of a legal rule increases over time, even the limited data set should reveal some identifiable trends. Without that assumption, at a minimum, the most recent quartile rankings should indicate the success of charitable legal regimes under §90(2). National Center for Charitable Statistics. | | | | |
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< | 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. | >
> | Iowa adopted an early draft of §90(2) in Salsbury v. Northwestern Bell Tel. Co., 221 N.W.2d 609 (Iowa 1974), and then reaffirmed, extending the doctrine to oral promises in Schmidt v. Mueller, 723 N.W.2d 454 (Iowa Ct. App. 2006). Between 2005 and 2013, Iowa rose from the fourth to the third quartile. New Jersey adopted the rule in Jewish Fed’n of Cent. N.J. v. Barondess, 560 A.2d 1352 (N.J. Law Div. 1989), basing its decision to enforce a pledge on public policy grounds. New Jersey ranked in the second quartile in 1995, and in the fourth in 2013. Other jurisdictions, though not expressly adopting the §90(2) rule, have indicated in dictum that, as a matter of public policy, pledge agreements for certain charitable organizations would be enforced. See Woodmere Academy v. Steinberg, 363 N.E.2d 1169 (N.Y. 1977); Hirsch v. Hirsch, 289 N.E.2d 386 (Ohio Ct. App. 1972). In 1995, New York and Ohio ranked in the first and third quartiles, respectively; in 2013, they ranked in the second and third. For critics of §90(2), the evidence is at best inconclusive, and at worst, contrary to major concerns regarding charitable activity level effects. | | | | |
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< | Money | >
> | Further Evidence of Non-Impact | | | | |
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< | 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. | >
> | Further evidence of non-impact is found by the scarcity of cases that have been litigated on point. (Contract Law and Theory, 5th ed. Scott and Krauss)(Citing less than a half-dozen since the beginning of §90(2)’s drafting in 1965). Like familial promises, the area of charitable giving may be more amenable to extralegal enforcement: normative social pressure to give, reputational effects of failing to meet a charitable obligation, and general reciprocity underlying the charitable system. | | | | |
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Um, no. Where did that come from?
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> | §90(2)'s Saving Grace | | | | |
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> | The criticism of §90(2), its potentially misguided far-reaching prudential insurgency, may also be its greatest cause for celebration. At the very least, §90(2) signaled to courts that strict adherence to formalism in the charitable subscription context is sometimes flawed. This openness to judicial activism is further supported by §90 comment d, which outlined, for the first time, the availability of partial, tailored remedial enforcement under §90. | | | | |
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> | In Application: | | | | |
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< | God | >
> | 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 other specific purpose was identified, was unenforceable for lack of consideration. It also held that because the Hospital undertook no specific work in reliance upon the subscription, the pledge could not be enforced through promissory estoppel. The defendant had executed two pledges for $50,000 each (today, approximately $700,000 in total) and had paid $20,000 before his death. | | | | |
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< | 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. | >
> | This dismissal of the enforcement claim reveals the flaws the Restaters aimed to address. In regards to consideration, charitable giving is not done in a vacuum: each donation jointly funds a community cause. The consideration may have been an implied understanding that the hospital would continue solicitation of other donations, or, more straightforwardly, the subsequent provision of actual charitable goods and services by the charity. In regards to reliance, the court failed to fully consider how charities function in society: as an ongoing entity with numerous income sources, divisibly irrelevant but indivisibly important. A hospital is primarily concerned with its patients, and secondarily concerned with the specificities of matching particular donations to particular budget allocations. | | | | |
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< | 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? | >
> | §90(2) broadly proposes that prudential fairness should not be limited by formalism. The Jordan court could have considered a variety of factors including the financial position of the estate (whether the enforcement of pledge was too great a burden on the estate’s primary heirs), the financial need of the hospital, the amount of the gift, the decedent’s other past charitable contributions, level of overall contact with the hospital, and whether the pledge was signed and written. | | | | |
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< | 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? | >
> | Conclusion | | | | |
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> | In light of inconclusive activity level effects, the unchallenged adoption of §90(2) in certain jurisdictions, and the functioning of a powerful non-legal regime, such an equitable standard may be worth further consideration for the most egregious violations of the collective values charity relies upon. §90(2)’s greatest worth may be its Holmesian nod to courts that strict adherence to formalism is not always justified. | | | | |
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< | 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.
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.
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.
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.
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