[arin-discuss] pre-ARIN IP allocation legal rights

[Jeremy McDermond]

On Oct 16, 2008, at 5:50 AM, <michael.dillon at bt.com> wrote:

> A lot of lawyers would disagree. The basis of the legal concept
> of a contract is that there is a meeting of minds between the
> two parties, and that a consideration is paid. In other words
> to have a contract, there must be an agreement, and something
> that has monetary value is exchanged. While modern contracts
> are typically written and signed in order to provide hard evidence
> of a contract, it is not necessary if there are reputable witnesses
> who will swear in court that there was an agreement.

The Statute of Frauds requires contracts where performance cannot be  
completed within a year to be in written form.  If the continuing in- 
addr.arpa and registration services were determined to be a continuing  
promise by the courts, it would mean that any agreement regarding them  
would have to be written.  Note that this is also the provision that  
requires that contracts for real property sales are in writing.

> Have you ever heard of the dollar-a-year men? During World War II
> a lot of business executives volunteered their services to get
> the war machine running, set up munitions plants, arrange  
> transportation
> of materials, etc. A similar thing happened during World War I, and
> these people were paid a dollar a year in order for there to be
> a binding contract. Like a soldier who volunteers to fight, these
> people could not suddenly stop volunteering because they were now
> salaried workers of the government.

Note that consideration is a two-way street.  Each party has  
consideration in the contract.  While the government's consideration  
is the single dollar, the executives' consideration is the promise to  
perform labor.  In fact, the government's consideration was probably  
the promise to pay a dollar at a later date, and therefore the  
consideration exchanged was an exchange of promises.

But also consider that some contracts are enforceable in the absence  
of consideration.  The Restatement (Second) of Contracts has a whole  
topic (§§82-96) about "Contracts Without Consideration".  Of  
particular application here could be §90 of the Restatement which says:

"(1) A promise which the promisor should reasonably expect to induce  
action or forbearance on the part of the promisee ... and which does  
induce such action or forbearance is binding if injustice can be  
avoided only by enforcement of the promise."

If the predecessor to ARIN made a promise to provide registration  
services, and the legacies relied on that promise to conduct their  
business, the courts could enforce it as a contract notwithstanding  
the fact that there is really no consideration.  This is discounting  
the privity of contract question.

The "one-dollar" theory of contracts is frowned upon by the courts  
sometimes as "nominal consideration."  If they see a huge discrepancy  
in consideration, they could find the contract unenforceable because  
they might see it as some indication of fraud.

> --Michael Dillon

--
Jeremy McDermond
Xenotropic Systems
mcdermj at xenotropic.com