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  1. #21
    MattKing's Avatar
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    Quote Originally Posted by copake_ham
    4) Seals - quaint English common law concept. Perhaps still required in UK and Canada - not so in U.S. These days we close a transaction via a signature page exchanged via a scanned .PDF file.
    Actually George, in the common law provinces of Canada, seals are almost never required, but in certain situations they are highly advantageous, so we use them.

    We most often use seals when it is unclear whether there is an exchange of valuable consideration, and thus the enforceability of the agreement could be called into question. A model release is an excellent example - if the model isn't paid, and is otherwise receiving no benefit, there is a real argument that nothing of value has flowed to the model, so the "bargain" shouldn't be enforced.

    The seals I use aren't fancy - they are little red stickers, about the size of a dime.

    I use them regularly in my estates practice, because I have beneficiaries sign releases, and there is an argument that the inheritances they receive are rights that have vested previously, thus there is no new consideration flowing to them in return for the signed release, etc., etc. etc.

    Of course, there are jurisdictions that have modified the common law rules concerning consideration by statute, but as far as I am aware, that is less common than you might think.

    By the way, I find your reference to a "quaint English Common law concept" quite entertaining. One of the things that I've learned from doing some comparative legal research, is that very often the provisions in law in the older United States are older ("more quaint??") than the comparable provisions in English and Canadian law. That appears to flow from the fact that between the time of the American revolution (1776), when the USA took over responsibility for its own jurisprudence, and the creation of the Dominion of Canada (1867), when Canada took responsibility for its own jurisprudence, there was about 100 years of quite radical change in English law. In essence, our starting point was about 100 years later, and both of our systems of law still retain a lot from when we started.

    Naturally, both systems have undergone hugely important changes in that time as well (e.g. your UCC) but there is still evidence of the differing roots.

    The most obvious (as in regularly shown on TV) example - many of your states still use the grand jury in criminal proceedings. The grand jury was used in England in the 1700s, but by the time Canada got its own Criminal Code, it had fallen out of use, so it is essentially unknown in our law.

    Matt

  2. #22

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    Quote Originally Posted by copake_ham
    "CONSIDERATION:

    The inducement to a contract. The cause, motive, price or impelling influence which induces a contracting party to enter into a contract. The reason or material cause of a contract. Some right, interest, profit or benefit accruing to one party, or some forebearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other."

    Black's Law Dictionary, Sixth Edition, 1990

    1) The above definition does not require, nor does it preclude, monetary remuneration.
    George, since you passed the bar (and I only pass bars that serve alcohol) would you please comment on any legal assumpptions associated wit the term "valuable" when used with 'consideration'. Is a kopek and a smile really "valuable"?

  3. #23
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    Quote Originally Posted by MattKing
    Actually George, in the common law provinces of Canada, seals are almost never required, but in certain situations they are highly advantageous, so we use them.

    We most often use seals when it is unclear whether there is an exchange of valuable consideration, and thus the enforceability of the agreement could be called into question. A model release is an excellent example - if the model isn't paid, and is otherwise receiving no benefit, there is a real argument that nothing of value has flowed to the model, so the "bargain" shouldn't be enforced.

    The seals I use aren't fancy - they are little red stickers, about the size of a dime.

    I use them regularly in my estates practice, because I have beneficiaries sign releases, and there is an argument that the inheritances they receive are rights that have vested previously, thus there is no new consideration flowing to them in return for the signed release, etc., etc. etc.

    Of course, there are jurisdictions that have modified the common law rules concerning consideration by statute, but as far as I am aware, that is less common than you might think.

    By the way, I find your reference to a "quaint English Common law concept" quite entertaining. One of the things that I've learned from doing some comparative legal research, is that very often the provisions in law in the older United States are older ("more quaint??") than the comparable provisions in English and Canadian law. That appears to flow from the fact that between the time of the American revolution (1776), when the USA took over responsibility for its own jurisprudence, and the creation of the Dominion of Canada (1867), when Canada took responsibility for its own jurisprudence, there was about 100 years of quite radical change in English law. In essence, our starting point was about 100 years later, and both of our systems of law still retain a lot from when we started.

    Naturally, both systems have undergone hugely important changes in that time as well (e.g. your UCC) but there is still evidence of the differing roots.

    The most obvious (as in regularly shown on TV) example - many of your states still use the grand jury in criminal proceedings. The grand jury was used in England in the 1700s, but by the time Canada got its own Criminal Code, it had fallen out of use, so it is essentially unknown in our law.

    Matt
    Matt,

    I presumed that the "seals" thing was really a matter of form rather than substance - there are certain "accoutrements of the trade" which clients (having watched too many movies and tv shows) expect to see when dealing with a lawyer. Heck, no one ever looks up case decisions in the bound "reporters" any more (that's why we have Lexis/Nexis!) but still looks impressive to have shelves of them in the conference room where you meet the client. .

    I work for an international bank on transaction-based docs. We just closed (along with a zillion and three other banks) deals with both Hydro Quebec and the Province.

    Now there, of course, it is not an English C.L. jurisdiction. But, looking at the historical timeline, I always been curious exactly what is the basis of Quebec civil law? The quick answer I hear is that it is based on the Napoleonic Code. But the British took over Quebec in 1763 - long before the Napoleonic Era. So perhaps Quebec's civil law is based on pre-Napoleonic France?

    But then, since for many years the English were a large minority in Quebec, it is difficult for me to see how they would have not sought the "protections" of English common law? It's been a long time since I studied the histories of Lower and Upper Canada. Was their a two-tier justice system in pre-1867 Lower Canada? If so, did it continue post-Confederation?

    As to the migration over time from common to statuatory law - based on 51 separate jurisdictions (50 states + DC) it's not surprising to see significant variations and continuing vestiges of earlier forms. Your point about the Grand Jury is one. My brother-in-law just retired from the bench in Tennessee after nearly 30 years. He served on their Chancery Court. It is the old court of equity - which is still used there. In New York, we merged the courts of law and equity many years ago.

    And remember, when you get out to the US southwest you have other variations - such as the community property concept.

    And I just got through dealing with explaining to our real estate folks in Munich that Mortgages and Deeds of Trust are the same - just different!

    To some extent these variations are interesting in their own right - and they do provide for full employment for "local counsel" when you are doing a multi-state deal!

    Going back to the original thread concept of "consideration" and the atavistic views of some - I was wondering if in R/E deals we should go back to the procedure whereby the feeofer of the land to be transfered should be required once again give the feeofee a clump of dirt from said real property so that the latter may be truly seised of the land?

    Could get messy at the closing table.

  4. #24
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    Could "valuable consideration" be a heartfelt "Thank You"???

  5. #25
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    Quote Originally Posted by joeyk49
    Could "valuable consideration" be a heartfelt "Thank You"???
    It's of great value, but not likely recognized as such by the law!

    It needs some sort of market value, even if slight. Traditionally, there are many references to peppercorns being nominal consideration, but those arose in the context of a world where peppercorns had to be imported to England, from a great distance away.

    In the case of a model release, a promise to credit the model whenever the photo was used might have sufficient market value, if the model was a professional.

    Matt

  6. #26

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    I think that "due compensation" becomes the applicable term in this matter. I think that if one were to be challenged in a court of law, at least here in the US, that you had better be prepared to show evidence that the "common and ordinary" compensation has been extended and received. I don't believe that some judges would be receptive to the idea that a proof sheet, a seal, or a print would show sufficient compensation had been extended and received.

    If challenged in a court of law, it will not matter if you and I as photographer think that we have extended the "common and ordinary" due compensation to the person that we photographed. At that point, should this occur, the judge may find that some of us are full of shit in our business procedures.

    The last street person that I photographed here in Phoenix was paid ten dollars for five minutes of his time and the right to photograph him. That makes his income worth $120 per hour. This seems to be the near the common and ordinary rate of $100 per hour for models in this area.

    I would suggest that we not become too damned creative in designing our own model releases. That makes judges get really pissed off when some schlock walkes into court with evidence that he thinks he knows about law and has no credentials to back up his pretense.
    Art is a step from what is obvious and well-known toward what is arcane and concealed.

    Visit my website at http://www.donaldmillerphotography.com

  7. #27
    MattKing's Avatar
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    Quote Originally Posted by copake_ham
    Now there, of course, it is not an English C.L. jurisdiction. But, looking at the historical timeline, I always been curious exactly what is the basis of Quebec civil law? The quick answer I hear is that it is based on the Napoleonic Code. But the British took over Quebec in 1763 - long before the Napoleonic Era. So perhaps Quebec's civil law is based on pre-Napoleonic France?

    But then, since for many years the English were a large minority in Quebec, it is difficult for me to see how they would have not sought the "protections" of English common law? It's been a long time since I studied the histories of Lower and Upper Canada. Was their a two-tier justice system in pre-1867 Lower Canada? If so, did it continue post-Confederation?
    George:

    I don't know whether it is correct to say that the British "took over" Lower Canada. Lower Canada (now Quebec) was pretty self-sufficient, except for issues of international scope. I think it is probably the case that Quebec's civil law was based on pre-Napoleonic France, and then went through much of the same transitions as the civil law went through when it was codified in the Napoleonic era.

    The colonies in what is now Canada were essentially independent of each other until Confederation, at least in terms of legal and governmental structures. As a result, Lower and Upper Canada and the maritime colonies evolved independently, although there was a common influence from England. I think it would be correct to say however that with respect to those matters covered under Quebec's civil law, England wasn't particularly interested in what Quebec was doing, as long as England got benefits from their Lower Canada colony. I expect that for private law issues, no one in Lower Canada wanted to involve England in any way. There may have been some public law that was imposed (criminal law?) but how much, I do not know.

    At the time of Confederation, the division of legal responsibilities was a major issue, and the preservation of Lower Canada's civil law structure was probably critical to the successful negotiations.

    Even now, with respect to the Supreme Court of Canada, Quebec enjoys a constitutional protection in that three of the nine judges must have come from Quebec. The practical reason for this protection is that it allows civil law cases to be heard before a panel which consists entirely of Quebec jurists.

    The Supreme Court of Canada is, of course, relatively younger than the country. Our final court of appeal was for a long time the Judicial Committee of the Privy Council ("JCPC") - the closest thing to a world court that we will ever likely see (IMHO). The irony I like is that Quebec was probably the strongest opponent to doing away with the right to take appeals to the JCPC.
    One of the major reasons for this was that the jurists on the JCPC, being the best educated and most experienced jurists in England and the Commonwealth, often had better knowledge of the Civil Code than the non Quebec Justices on the Supreme Court of Canada, and almost invariably spoke better French than those non Quebec Justices!

    Matt

  8. #28
    Ed Sukach's Avatar
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    Quote Originally Posted by Suzanne Revy
    One photographer I've met, Andrea Modica, photographed a young girl, Barbara, and her family over a period of ten years. She's published two books, "Treadwell" and "Barbara" with this work. She says she offers 10 percent of her profits to the people she photographs, and I think she gives them prints from time to time.

    That struck me as fair and ethical.
    I think that is fair and ethical as well. If it is my "Fine Art", I will invariably do the same - 10% of the net proceeds I receive WILL be provided to the model as an extra added reasonable compensation. I think the word "reasonable" is the key here. There are instances where models have contested releases on the grounds of "good faith" and "Reasonable compensation". To pay a model one kopeck for her work, and to have that work plastered on Billboards, and Fashion Magazines, all as a major element of a National advertising campaign, or in a Coffee Table Book, could hardly be called "reasonable".

    The usual "boiler plate" model releases do not reflect this, nor do they allow for a review of the work by the model, before publication - something else I always do, if possible.

    I am in the process of revising my Model Releases to reflect this - more clearly delineating the allowable end use of the images, the Model's right to review the work, and future compensation.

    My youngest daughter has a *TON* of first hand experience with Model Releases from years of experience at a Law Firm dealing with that very area. I have every confidence in her advice - not as a Lawyer, but from the real seat of Legal Intelligence - a Legal Secretary.
    Carpe erratum!!

    Ed Sukach, FFP.

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