Law in Contemporary Society

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ArgiriosNickasFirstEssay 4 - 14 Apr 2016 - Main.ArgiriosNickas
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The (Second) Restatement §90(2): A Holmesian Disaster?

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 §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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Conclusion

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A Sheep in Wolf's Clothing

 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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