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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 con

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/4.2.1-restatement-second-of-contracts-90-promissory-estoppel/ https://opencasebook.org/casebooks/3665-contracts/resources/...

tialaramex 4y ago
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 4y ago
  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 4y ago
    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 4y ago
      Was this meant as a reply to this thread? I'm not quite seeing the connection.
      - tialaramex 4y ago
        Even if your "bare promise" could work, which I'm dubious about, the larger problem is that the lender's lawyers probably aren't sure it would work, which means that they won't lend on homes bought this way, which makes the "bare promise" idea useless in practice. Maybe what wasn't clear is why homes come into it? The most common Peppercorn considerations are in Long Leases. A Long Lease might go like this, I own a plot of land somewhere, "Freehold" is the English term for this ownership. I obtain permission and I build a residential tower, with say forty dwellings inside it. That's one building, on one plot of land, but I need to sell it to forty separate buyers. Today there's a legal mechanism to do this, called Commonhold, but it's rarely used, however historically Commonhold didn't exist, so, if I own the plot of land, and the building, I would write leases for the dwellings inside the building with a long duration. Periods like 99 years, 125 years or even 999 years are often used. Then I sell those leases. As consideration the owner pays me one peppercorn per year, for the period, and I agree to let them live in my tower in exchange. This is called Leasehold ownership, for example somebody might pay £200 000 for a Long Lease on a modest two bedroom apartment in a nice area. These leases don't really (normally) "run out" because the law requires that they can be extended for a reasonable fee, so in practice they're usually permanent.
- bitwize 4y ago
  This poses a problem with open source licenses. Without consideration (payment), open source licenses become bare licenses which may be revoked at any time by the grantor.
- concordDance 4y ago
  I'm unsure if 100+ year contracts should ever be valid... those involved are binding people who haven't been more and are completely insulated from the long term consequences by virtue of being dead.
  - defrost 4y ago
    The common ~ 150+ year old peppercorn leases that I've seen date back to the early days of our state capital city when then outer limits farm land was bequeathed by the 'owner'|occupying colonists on their death - some directly to their family, some to the local church, and several plots to the local city as "designated land" on a peppercorn contract. Eg: This large park [1] is leased for a peppercorn a year to the city on the absolute proviso it be used as a park open to all otherwise the lease is terminated and the park reverts back to the estate of the bequeathing family. Now, there's a can of worms some years and generations down the track - should the usage alter (or the peppercorns fail to be delivered to the lawyers) the grand-grand-grand children will be bunfighting over some serious now near inner city real estate. [1] https://en.wikipedia.org/wiki/Hyde_Park,_Perth https://en.wikipedia.org/wiki/Hyde_Park,_Perth
    - M2Ys4U 4y ago
      This is why the Rule Against Perpetuities exists for most (non-charitable) bequeathments in English law.
      - defrost 4y ago
        Sure, the University of Bath, National Coastwatch Institution, and a number of the larger 'public' parks and gardens in England are on strictly limited 999 year leases. To the best of my recollection none of those thousand year (less one) leases have run out to date.
fsckboy 4y ago
contracts need three elements, (1) a meeting of the minds (the parties need to agree what the contract is about), (2) and exchange of consideration (including of a peppercorn), and those two are not enough, one of the party needs to act on the contract showing (3) reliance. (and contracts need to entail legal activities) IANAL but maybe you aren't either, and the discussion of reliance that you link to does not mean the other elements of the contract don't need to also be in place unless you specifically know otherwise. IANAL but the "doctrine of reliance" is not a doctrine on its own afaik, it's one of the three elements of a valid contract.
- gnicholas 4y ago
  (IAAL, FWIW) Section 90 reliance is a separate doctrine that doesn't require consideration flowing in both directions — that's the whole point of it. I may be misremembering Contracts class (it was almost 20 years ago!), but I'm pretty sure on this one.

tialaramex 4y ago

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 4y ago
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 4y ago
  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 4y ago
    Was this meant as a reply to this thread? I'm not quite seeing the connection.
    - tialaramex 4y ago
      Even if your "bare promise" could work, which I'm dubious about, the larger problem is that the lender's lawyers probably aren't sure it would work, which means that they won't lend on homes bought this way, which makes the "bare promise" idea useless in practice. Maybe what wasn't clear is why homes come into it? The most common Peppercorn considerations are in Long Leases. A Long Lease might go like this, I own a plot of land somewhere, "Freehold" is the English term for this ownership. I obtain permission and I build a residential tower, with say forty dwellings inside it. That's one building, on one plot of land, but I need to sell it to forty separate buyers. Today there's a legal mechanism to do this, called Commonhold, but it's rarely used, however historically Commonhold didn't exist, so, if I own the plot of land, and the building, I would write leases for the dwellings inside the building with a long duration. Periods like 99 years, 125 years or even 999 years are often used. Then I sell those leases. As consideration the owner pays me one peppercorn per year, for the period, and I agree to let them live in my tower in exchange. This is called Leasehold ownership, for example somebody might pay £200 000 for a Long Lease on a modest two bedroom apartment in a nice area. These leases don't really (normally) "run out" because the law requires that they can be extended for a reasonable fee, so in practice they're usually permanent.
bitwize 4y ago
This poses a problem with open source licenses. Without consideration (payment), open source licenses become bare licenses which may be revoked at any time by the grantor.
concordDance 4y ago
I'm unsure if 100+ year contracts should ever be valid... those involved are binding people who haven't been more and are completely insulated from the long term consequences by virtue of being dead.
- defrost 4y ago
  The common ~ 150+ year old peppercorn leases that I've seen date back to the early days of our state capital city when then outer limits farm land was bequeathed by the 'owner'|occupying colonists on their death - some directly to their family, some to the local church, and several plots to the local city as "designated land" on a peppercorn contract. Eg: This large park [1] is leased for a peppercorn a year to the city on the absolute proviso it be used as a park open to all otherwise the lease is terminated and the park reverts back to the estate of the bequeathing family. Now, there's a can of worms some years and generations down the track - should the usage alter (or the peppercorns fail to be delivered to the lawyers) the grand-grand-grand children will be bunfighting over some serious now near inner city real estate. [1] https://en.wikipedia.org/wiki/Hyde_Park,_Perth https://en.wikipedia.org/wiki/Hyde_Park,_Perth
  - M2Ys4U 4y ago
    This is why the Rule Against Perpetuities exists for most (non-charitable) bequeathments in English law.
    - defrost 4y ago
      Sure, the University of Bath, National Coastwatch Institution, and a number of the larger 'public' parks and gardens in England are on strictly limited 999 year leases. To the best of my recollection none of those thousand year (less one) leases have run out to date.

fsckboy 4y ago

contracts need three elements, (1) a meeting of the minds (the parties need to agree what the contract is about), (2) and exchange of consideration (including of a peppercorn), and those two are not enough, one of the party needs to act on the contract showing (3) reliance. (and contracts need to entail legal activities) IANAL but maybe you aren't either, and the discussion of reliance that you link to does not mean the other elements of the contract don't need to also be in place unless you specifically know otherwise. IANAL but the "doctrine of reliance" is not a doctrine on its own afaik, it's one of the three elements of a valid contract.

gnicholas 4y ago
(IAAL, FWIW) Section 90 reliance is a separate doctrine that doesn't require consideration flowing in both directions — that's the whole point of it. I may be misremembering Contracts class (it was almost 20 years ago!), but I'm pretty sure on this one.