Mr. Hodgkin,
As a lawyer, one thing I find supremely irritating is when a lawyer tries to impose his special “knowledge” of “the law” on nonlawyers. Especially when it is done in a condescending way. My level of irritation grows when it is done inaccurately.
I stumbled across your intermittent treatise on contract law this afternoon. For the benefit of the thread, I thought I would offer a different perspective.
One of the most difficult areas of contract law -- for laypeople, law students and lawyers alike – revolves around the question: When is a contract formed between two parties with capacity to contract and about a valid and enforceable subject matter? Our office has Williston’s 21 volume contract law treatise on the shelf (700-plus pages per volume), and it devotes ten volumes, over seven thousand pages, to answering that question.
A few of the things you have said are correct. A contract requires that there be an offer, an acceptance, mutual assent, consideration, etc. There was clearly an offer here. It read as follows:
You are most likely aware that your banning from SMBR is being reconsidered. Poet herself has requested that you be admitted.
Poet isn't planning a return to SI, but most long-time posters who depart and still have friends here do eventually return, so I think a toorabout is in order so she will be able to post on SMBR if she chooses to in the future.
It would simply be that you do not post toorabout Poet on SI or IHub, directly or indirectly. Post
about articles she posts if you want, but not directly or indirectly engaging her or her specific comments. Just stay completely away from her. If you agree to this arrangement (which may be moot anyway if she never returns), you're unbanned at Poet's request as of tomorrow.
(Post no. 48395 of Laz Long, siliconinvestor.com
You responded to this offer with the following:
I have repeatedly expressed a willingness to not post to or about Poet, in the terms as that was described by Jewel, on SI. While your formulation is not in the same words as Jewel's, I don't see any substantive difference, so I think we have agreement there.
I do not agree to mix up IH and SI. I don't say this because I have any intent of interacting with Poet on IH -- Matt has made clear that that is not to happen, and he has the ability to enforce that without any of the restraints SI had since I post there by sufferance, not by contract -- but because I don't believe that it is appropriate to mix up the two venues. Matt has repeatedly stated that he wants what is on SI to stay on SI and not migrate to IH, and I feel an obligation to honor that.
Obviously, you have the complete discretion to ban anybody on SM at any time for any reason; it's part of the autocratic nature of moderator's position. So you don't need that commitment from me anyhow--if in future you choose to ban me or anybody else for anything they do on IH or anywhere else on or off the web, you have that power. So that is in any case moot.
(Post no. 48953 of Christopher Hodgkin, siliconinvestor.com. For the record, I bolded that last part, because it is important to a proper analysis of the “contract” issues you have raised.
Laz responded by “accepting” your counteroffer:
It's done.
(Post no. 49008 of Laz Long, siliconinvestor.com ).
If there is an enforceable contractual relationship here, it derives from that exchange. Now let’s look closely at that exchange. Nowhere does it say for what duration or term Laz will allow you to post on SMBR. It doesn’t say for a month, a year, forever, or anything. Nor did you pay Laz for the privilege of posting there. You did refrain from talking to or about someone who had already left that place anyway, but it is questionable whether that constitutes valid consideration to render the promises mutually enforceable.
More important is your statement in response to Laz’s offer. You said: “Obviously, you have the complete discretion to ban anybody on SM at any time for any reason; it's part of the autocratic nature of moderator's position. So you don't need that commitment from me anyhow--if in future you choose to ban me or anybody else for anything they do on IH or anywhere else on or off the web, you have that power. So that is in any case moot.”
That makes it pretty clear to me that, if there was a contract, you both understood that it was terminable at will be either party at any time. You expressly indicated that Laz retained the power to re-ban you “at any time for any reason” (your words), and Laz responded by accepting your offer by the words “It’s done.” His acceptance was expressly in the context of your statement that he retained the authority to ban you for other reasons.
Was there consideration? Was it a valid contract? I have my doubts. But those issues don’t need to enter into the analysis here. IF there was a contract, it was terminable by Laz at will for any reason, by your own words.
I think of SI as a village or town. At the outset, the town only had public areas......all threads were open to all, like bus shelters without doors. Over time, this created problems for residents of the town, because like all unprotected areas, people were open to the elements. Eventually, many areas of SI were overrun by coyotes, jackals, rodents, mice, spiders, skunks, and other undesirables.
This was addressed at long last by the moderated threads. Moderated threads are essentially permits for the town’s residents to build houses or apartment buildings. Whoever builds these dwellings rules them. If I don’t want you in my house, I ban you. If you don’t want me in your house, you ban me. The public areas still exist, many prefer them in the same way that people in the real world often prefer public discussions to private ones.
Your point of view here is that Laz agreed to let you in his house as long as you didn’t say anything to or about Poet. But he opened the front door to his house to you after you stated that you understood he retained the ability to kick you right back out of that door if he so chose. And he did so choose. There are some old cases about informal contracts where one party agreed to let the other party stay in their house if the other party did or refrained from doing something (no rent was paid). And in those cases, the courts decided that you didn’t have to let the person stay in your house forever. |
