============================== CFJ 2264 ==============================
Contracts CAN be amended by a mechanism other than unanimous consent
of all parties.
Called by Wooble: 11 Nov 2008 14:35:33 GMT
Assigned to ais523: 15 Nov 2008 16:47:27 GMT
Judged TRUE by ais523: 22 Nov 2008 13:11:42 GMT
The ruling in CFJ 2246 strongly implies that any amendment
process other than unanimous consent violates R101.
Gratuitous Arguments by ais523:
Other amendment processes don't necessarily 'violate' it in
the sense of making it not counting as having agreed to the amendment
either; for instance, without-objection, or without member objection, or
any method that gives people a chance to leave the contract before it's
resolved. I think pretty much all popular contracts at the moment have
such an agreement-safe mechanism.
Gratuitous Arguments by G.:
When the "rights" clauses of R101 were written, there
was wording in the Rules that the Rules themselves should be "treated
as" a contract. This was since removed and/or broken, but at
the time there was the following passage (R1503/6):
The proposal, fora, and registration processes shall, prima
facie, be considered to be protective of a Player's rights and
privileges with respect to making and changing the agreement to
be bound by the rules.
This strongly suggests that a Proposal-type process, though non-
unanimous, was seen as reasonable model for constituting "reasonable
opportunity to review" an amendment to a contract. While that direct
link between contracts and Rules is no more, the wording of that
right has not substantially changed nor have those standards been
strongly challenged by precedent to my knowledge, strongly suggesting
that contracts containing non-unanimous processes with adequate
distribution and decision-time requirements would not violate R101
[n.b. I haven't fully digested CFJ 2246 so don't have a specific
opinion there as of yet].
Judge ais523's Arguments:
I think that this one is pretty trivially TRUE. However, whether the
resulting amended contract is effective is an interesting question; R101
might prevent its effectiveness. According to rule 101(iv), amendments
to agreements are not considered binding if they have not been reviewed
by the party to the agreement in question. However, there are certainly
mechanisms other than unanimous consent which give the parties a chance
to review, so although this is relevant here it doesn't affect the truth
of the statement.
The other reason that the contracts might not be binding is rule
101(iii); however, that covers agreeing to contracts in the first place.
Whether an amendment counts as a new contract is doubtful; amendments
change the existing contract. However, there are other reasons why the
resulting contract might not take effect; effects of a contract which
rely on agreement to it (such as acting on behalf) won't work unless the
players in question have actually agreed to it, and violations of
amendments against the nature of the contract can't be punished by the
criminal courts (due to TITE) or the equity courts (due to the
punishment not going against the nature of the contract's original
intention). In the case of a partnership, though, it's possible that the
amendment might create obligations that can be punished criminally, but
even then DISCHARGE might be the resulting punishment.
So I judge CFJ 2264 trivially TRUE to the literal question asked, and
TRUE to the spirit of the question, but with many caveats; the contract
can be amended, but might not be enforceable.
Gratuitous Arguments by G.:
Peter Suber's quote (thanks, Murphy!):
"My rationale for requiring unanimous votes for amendment, initially, is
to create a kind of social contract in which no player can be overruled
until she consents to take the risk by switching to majority rule or
some other system."
The splitting of R101(iii) and (iv) is meant to follow this rationale,
and the fact that there are explicitly two separate standards in (iii)
and (iv) should be taken to Mean Something.
You have to give explicit consent to join something in the first place.
But once you agree to join something with non-unanimous change mechanisms,
or if you are in something with unanimous change mechanisms and you
agree to make the mechanism non-unanimous, you accept the risk and
must live with the consequences--no blanket protection once you consent
to be in (the only caveat being no secret surprises due to (iv)'s review
clause). For TITE purposes, any contract that specifies a non-unanimous
change mechanism has such change as part of its "original intention."
Being inducted into a whole rules system whose jurisdiction you haven't
agreed to be in is Mousetrapping. But once you've agreed to step into
a jurisdiction, if you're put in trouble but a non-unanimous change
method you agreed to be a part of, that's not a Mousetrap, that's Nomic.