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  • Legally binding contract or not?

    Legal experts please help me out.

    Is this challenge a legally binding contract ?

    http://www.randi.org/research/index.html
    http://www.randi.org/research/challenge.html


    If someone came forward with conclusive proof of ESP
    but this guy refused to pay out, could he be sued successfully?

    In th UK there is a precedent in Hampden vs Walsh (1881).
    A flat earther offered a prize to anyone that could scientifically
    prove the curvature of the Earth, then refused to pay. The court
    decided that his offer amounted to a wager. Wagering contracts are
    not legally enforceable

    UK precedents are not binding in US courts, of course. But
    still the law might be similar. Under US laws, specifically Florida
    laws, would this be a binding and enforceable contract?



  • #2
    Legally binding contract or not?

    On Tue, 14 Mar 2006, "Tommy Pierce" <[email protected]> wrote:
    No. It is an offer to negotiated whether to enter into a legally
    binding contract, as the test at the URLs referred to and also at
    http://www.randi.org/research/faq.html
    clearly say (and as Mr. Randi himself also has said clearly: "The
    Challenge application, once signed, becomes a contract").
    If someone came forward with conclusive proof of ESPbut this guy refused to pay out, could he be sued successfully?
    If someone who agreed in writing with the James Randi Educational
    Foundation to all the terms/provisions offered by the text at the
    above-cited URLs propose and who then, in compliance with those
    terms/conditions, proved there was ESP or whatever if any was the
    other agreed "paranormal" phenomena agreed about but was not paid the
    agreed sum, that person would have a valid basis in the U.S. for a
    breach of contract lawsuit against the James Randi Educational
    Foundation and (depending what the final agreement states about this
    issue) perhaps also against James Randi, personally.
    In the UK there is a precedent in Hampden vs Walsh (1881).A flat earther offered a prize to anyone that could scientificallyprove the curvature of the Earth, then refused to pay. The courtdecided that his offer amounted to a wager. Wagering contracts arenot legally enforceable
    The proposed JREF -w- would-be ESP-prover agreement was drafted with
    authority like Hampden v. Walsh in mind and was intended in part to
    provide the basis for an enforceable contract and for a rather basic
    reason: Mr. Randi is personally/politically/culturally committed to
    exposing fraud commonly associated with persons claiming to "prove"
    that there is "ESP" and believes based on his knowledge/experience
    that it is sufficiently unlikely that there will be actual such proof
    (as "proof" and related terms are defined by the proffered agreement)
    that there is very low risk to JREF or to him in making the offer
    referred to.
    UK precedents are not binding in US courts, of course. But still the law might be similar. Under US laws, specifically Florida laws, would this be a binding and enforceable contract?
    There isn't a provision of Fla. law that would make the agreement as
    offered not enforceable, although it is likely that an applicant who
    established a serious claim (by completing the application process)
    would be asked to agree to a N.Y. choice-of-law provision.


    Comment


    • #3
      Legally binding contract or not?


      <[email protected]> wrote in message
      news:[email protected]
      On Tue, 14 Mar 2006, "Tommy Pierce" <[email protected]> wrote:
      The proposed JREF -w- would-be ESP-prover agreement was drafted with authority like Hampden v. Walsh in mind and was intended in part to provide the basis for an enforceable contract and for a rather basic reason: Mr. Randi is personally/politically/culturally committed to exposing fraud commonly associated with persons claiming to "prove" that there is "ESP" and believes based on his knowledge/experience that it is sufficiently unlikely that there will be actual such proof (as "proof" and related terms are defined by the proffered agreement) that there is very low risk to JREF or to him in making the offer referred to.
      I think you've missed the point of my question. It comes down to
      two points:


      1) Under US law would this be a wager, as Hampden's challenge was?
      Why, or why not? I think this IS a wager, if I'm wrong tell me what
      I'm missing.

      2) Are wagering contracts legally enforceable in the US? Or are they
      unenforceable, as in the UK?


      And just because the challenge agreement SAYS that it is legally binding
      does not make it so. He doesn't always know what he's talking about
      and the law is one area in which he has no expertise.


      And a couple of other points:


      Under UK law a promise is only binding when supported by valuable
      consideration. Is that also true under US law? If so, where's the
      peppercorn? A successful applicant hasn't performed any valuable
      service to Randi, all he's done is demonstrate that Randi is mistaken.
      Is proving a point adequate consideration?


      If it's a legally binding contract, can Randi sue failed applicants for
      breach of contract? If someone promises to demonstrate ESP and
      then fails to do so, can Randi demand compensation?









      Comment


      • #4
        Legally binding contract or not?

        "Tommy Pierce" <[email protected]> wrote in message
        news:[email protected] uk...
        <[email protected]> wrote in message news:[email protected]
        On Tue, 14 Mar 2006, "Tommy Pierce" <[email protected]> wrote: The proposed JREF -w- would-be ESP-prover agreement was drafted with authority like Hampden v. Walsh in mind and was intended in part to provide the basis for an enforceable contract and for a rather basic reason: Mr. Randi is personally/politically/culturally committed to exposing fraud commonly associated with persons claiming to "prove" that there is "ESP" and believes based on his knowledge/experience that it is sufficiently unlikely that there will be actual such proof (as "proof" and related terms are defined by the proffered agreement) that there is very low risk to JREF or to him in making the offer referred to.
        I think you've missed the point of my question. It comes down to two points: 1) Under US law would this be a wager, as Hampden's challenge was? Why, or why not? I think this IS a wager, if I'm wrong tell me what I'm missing. 2) Are wagering contracts legally enforceable in the US? Or are they unenforceable, as in the UK?
        I believe this offer of a prize would be legally enforceable in the U.S.
        Wagering contracts are illegal in most, if not all, U.S. jurisdictions
        because the wager itself is illegal, and therefore a contract amounting to a
        wager has an illegal purpose. Even in Nevada, gambling is generally illegal
        except as permitted, licensed and regulated by the state government. But
        this offer of a prize as expressed in the document would be enforceable as a
        conditional gift promise upon which the applicant has relied to his
        detriment. A gift promise is enforceable regardless of consideration if the
        donee relied on the promise to his detriment, and the promissor knew of,
        should have known of, or sought, the detriment. I'm not saying I couldn't
        support a straight contract conclusion, I'm only saying it is unecessesary.
        And just because the challenge agreement SAYS that it is legally binding does not make it so. He doesn't always know what he's talking about and the law is one area in which he has no expertise. And a couple of other points: Under UK law a promise is only binding when supported by valuable consideration. Is that also true under US law?
        Scratch the word "valuable" and the answer is Yes.
        If so, where's the peppercorn? A successful applicant hasn't performed any valuable service to Randi, all he's done is demonstrate that Randi is mistaken. Is proving a point adequate consideration?
        The consideration sufficient to support a contract doesn't have to be
        beneficial to the recipient. It is enough that the promise or performance
        of the other party is in some way detrimental to that party, such as giving
        up a right. Any bargained for consideration, benefit or detriment,
        regardless of how little value it may have, is sufficient as long as it is
        not a sham or a mere recitation of consideration. The key is that the
        consideration was bargained for. The applicant's agreement is a detriment
        to the applicant. Not much detriment perhaps, but that's OK, it was
        detriment that Randi wanted. First, the applicant gives up the right to
        deny that the conditions precedent apply to the prize. In other words, the
        applicant gives up the ability to claim convincingly that some test of his
        powers would be valid even though not agreed to by Randi. Second, by
        signing the contract the applicant is taking the risk that the progress of
        events under the contract could end up in a test which the applicant fails,
        with the resulting embarassement.
        If it's a legally binding contract, can Randi sue failed applicants for breach of contract? If someone promises to demonstrate ESP and then fails to do so, can Randi demand compensation?
        Randi cannot sue the applicant who fails, because the applicant has never
        promised to succeed, or even to attempt to prove his claim. The applicant
        agreed to the conditions precedent to payment by Randi, in effect agreeing
        that he would be entitled to no prize if the conditions were not met.

        By the way, I don't believe Hampden v. Walsh says what you say it says. If
        you can provide a citation, I'd like to read it.

        This answer must not be relied on as legal

        advice for the reasons posted here:
        http://www.msnusers.com/1LawChat/Doc...Disclaimer.doc



        McGyver


        Comment


        • #5
          Legally binding contract or not?

          "Tommy Pierce" <[email protected]> wrote:
          <[email protected]> wrote ...
          The proposed JREF -w- would-be ESP-prover agreement was drafted with authority like Hampden v. Walsh in mind . . .intended . . . to provide the basis for an enforceable contract and [not for a just apparent "contract" not enforceable on public policy grounds, e.g., as a "wager" that is not lawful] . . . .
          I think you've missed the point of my question. It comes down to two points: Under US law would this be a wager, as Hampden's challenge was?
          No (as I said earlier without missing the point of your earlier
          question).
          Why, or why not? I think this IS a wager, if I'm wrong tell me what I'm missing.
          Because you presume vaguely but without explicating specifically what
          a "wager" that a court would rule unenforceable as violative of some
          particular jurisdiction's anti-"wager" statute is (if there were such
          a statute that applied, although you did not say that there is in
          whatever are the places you have in mind) or, in common law terms,
          would be unenforceable "as against public policy" (re. which see
          further comment below for "why").
          Are wagering contracts legally enforceable in the US? Or are they unenforceable, as in the UK?
          In most places in the U.S., various forms of unlicensed "wagering" or
          "gambling" or the like are prohibited by a particular state's penal
          law (what sorts of gambling/betting/etc, and where, are/aren't covered
          by U.S. federal law has become something of an arguably unsettled bone
          of contention in light of the growth of internet-factilitated
          gambling) and, in some places (most notably, e.g., in Nevada) many
          forms of wagering and other gambling (in some kinds of circumstances)
          are not unlawful.

          You would also be correct if you were to point out that some statutory
          definitions of "gambling" (which include "wagering" _seem_ to be
          sufficiently broad (if read too glibly and without sufficient
          attention to how courts construe/apply such laws) to appear to include
          apparently any agreement to by personA to pay personB a sum of money
          or to do some other thing of value on the happening of a contingent
          event not within the control of one or the other.

          See, e.g., N.Y. Penal Law 225.00 ("'Gambling' A person engages in
          gambling when he stakes or risks something of value upon the outcome
          of a contest of chance or a future contingent event not under his
          control or influence, upon an agreement or understanding that he will
          receive something of value in the event of a certain outcome") and not
          that the here stated "e.g." is to indicate, correctly, that it would
          not be difficult for you to find like "definitions" in other U.S.
          states' criminal laws.

          And you would be further correct if you were to have observed (and,
          maybe, you already do this at least implicitly) that, borrowing from
          and influenced by British common law principles, one can find past
          (and, perhaps, a tiny number of recent) U.S. judicial decisions that
          reason that some kinds of agreements are void as against public policy
          because they arguably clearly or, anyway, at bottom (even if in
          cosmetically disguised form) constitute prohibited "wagering". One
          also will find, however, numerous judicial rulings that purport to
          explain what, (based on your postings in this thread) undoubtedly, you
          might claim to be "wagering" or "gambling" are not that. Nonetheless,
          you would find, e.g., that historically, it was on this basis
          (invoking/applying, "It's an illegal 'wager'!" claim) that it used to
          be unlawful in most places in the U.S. for insurance companies do to
          business as insurers (f/k/a, "ton-ton"s and the like) . . . until, of
          course, insurance companies somehow managed to convince state
          legislators and judges to allow them to predict ("wager"?) that the
          insured won't die before date# or be subjected to some other sort of
          insured against occurrence.
          And just because the challenge agreement SAYS that it is legally binding does not make it so.
          I agree that a party's unilaterally made characterization of an
          agreement (or, for that matter, pretty much any form of law-releavnt
          activity) does not, standing alone, bind the State (whether acting
          through its courts or otherwise).

          Conversely, however, your just SAYING that the Randi/JREF contract is
          not legally binding (or is a "wager" and, as such, unlawful as against
          some particular state's penal law - which, however, you have not cited
          - or "public policy") does not make it so either any more than would
          it be correct for you to point to a pile of chopped liver and to
          insist that it is a porterhouse steak.

          Fairly - that is, provided _actually_ - read in full and context, the
          Randi/JREF offer to enter into the agreement plainly is not a "wager"
          nor any other form of gambling. Instead - and despite its
          characterization as a "Challenge" - the Randi/JREF is a solicitation
          of the performance of a service, although not a service that would
          itself be unlawful:

          Providing that we can and then also do agree in writing what the
          standards which will be applied to the would be service provider to
          determine whether s/he will have provided the "proof" of ESP or
          whatever is the other "paranormal" act as and when defined by the
          agreement to be memorialized in writing and providing further that the
          would-be service provider does in fact perform the contracted for
          service (here, furnishing whatever is the agreed "proof" at issue),
          they say in effect, we will pay the agreed sum (and, indeed, by a
          variety of third-party escrow deposit and related pre-payment
          verification arrangements, go a long way to assure the promisee that
          payment would be assured rather than have the promisee rely on a
          JREF/Randy promise to pay standing alone).

          Randi/JREF further say that, given the nature of their longstanding
          prior business interests - which are of course very well documented -
          rendering this service (providing the "proof" at issue) would be
          furnishing them with very valuable additional consideration for which
          they are willing to pay the stated sum.

          What the proffered contract does _not_ say, however, is that
          Randi/JREF wager (or bet or gamble or in any other way predict) that
          the prospective claimant/would-be-payee will not succeed in providing
          the "proof" contracted for.

          The agreement if entered into would thus not be any different (in
          concept/structure even if not in its particulars) from any other
          personal services agreement, whether patient-with-physician (the
          latter presumably neither wagering that s/he will provide a cure or
          that it will not be possible to provide a cure), client-with-lawyer
          (the attorney presumably not wagering that the client will win the
          case nor that the client cannot possibly win), the car
          mechanic-with-customer (even if the customer "bets" that the
          contracted with vehicle repairer will not be able to find cause of the
          rattle/noise), or the gardener with homeowner (even if the gardener
          "wagers" that the tree he proposes to plant will grow in an area where
          an earlier one had died); etc., etc., etc.

          In sum, your here implied argument apparently with Randi (and, it
          seems, with me) is therefore premised on your painting with much too
          broad a definitional brush; although under your theory as you've so
          far summarized it, there apparently could not be any form of personal
          services contract that would be enforceable (in a jurisdiction which
          outlaws "wagering").
          He doesn't always know what he's talking about and the law is one area in which he has no expertise.
          Except that I suppose that, to some, he is an interesting entertainer,
          I don't hold any particular brief for or against Randi and do not
          express any opinion whatever about whether he does or does not know
          what he is talking about and, instead, confine my comments to whether
          the agreement he offers to enter into if entered into would be
          enforceable by a court in the U.S. in a well-presented lawsuit.
          And a couple of other points: Under UK law a promise is only binding when supported by valuable consideration. Is that also true under US law?
          The "valuable" in the term "valuable consideration" would generally be
          considered superfluous for most purposes in U.S. civil law and, in
          most cases (by reason of a combination of similar if slightly variant
          legislation and judicial decisions), a contract memorialized in/by a
          mutually signed writing probably would be presumed to be supported by
          adequate consideration.

          In other words, if/when stated generally, the generally prevailing
          U.S. principle in this respect would be that a promise is the
          predicate for a law enforceable contract is not binding in the U.S.
          unless supported by consideration.
          If so, where's the peppercorn? A successful applicant hasn't performed any valuable service to Randi, all he's done is demonstrate that Randi is mistaken. Is proving a point adequate consideration?
          Even after granting whatever deference may be due to your generalized
          comment above to the effect that merely because a party says that a
          promise stated in writing will be binding does not necessarily in all
          scenarios make it so, there is a huge body of caselaw in the U.S. -
          and, for that matter, in Gt. Britain - that would support the
          enforceability at law of a mutually signed writing that incorporates
          all the conditions stated in the Randi/JREF offer (even if, again, it
          is characterized as a "Challenge").
          If it's a legally binding contract, can Randi sue failed applicants for breach of contract? If someone promises to demonstrate ESP and then fails to do so, can Randi demand compensation?
          This is an at once emptily silly and anyway circular question (quite
          apart from the, "Anyone can sue anyone else for anything!" rubric)
          which either betrays ignorance or a willful disregard of what the
          Randi/JREF offer actually states in this connection.

          The offeror(s) make quite clear that in the final document to be
          signed that would constitute the full/completed contract will contain
          provisions to the effect that the applicant who would become a
          claimant will have paid for (or that that person and Randi/JREF will
          otherwise have agreed in advance about alternatives for payment of)
          the costs/expenses of implementing whatever may be the agreed upon
          steps for verification of whether there has/hasn't been the "proof"
          being contracted for and that, in case of failure of such payment,
          Randi's/JREF's remedy would be basically just be to invoke whatever
          would be the contract's cancellation provision.

          But is it at least theoretically possible that one or the other
          parties might try to litigate an unresolved dispute about whether
          JREF's/Randi's so doing is/isn't in breach or otherwise lawful or
          whether the claimant will have damaged Randi/JREF in some way in
          connection with the contract? Yes, depending on what the contract as
          finally drafted says and on whatever are the then facts in this
          respect. Here, too, no different from any other contractual dispute.

          Comment


          • #6
            Legally binding contract or not?

            By the way, I don't believe Hampden v. Walsh says what you say it says. If you can provide a citation, I'd like to read it.
            The Judge's opinion:

            Wager--Construction of Agreement--Action to recover Deposit--8 & 9 Vict. c.
            109, s. 18.

            Plaintiff and W. deposited each 500l. with defendant, on an agreement that
            if W., on or before the 15th of March, 1870, proved the convexity or
            curvature to and fro of the surface of any canal, river, or lake, by actual
            measurement and demonstration, to the satisfaction of defendant, W. should
            receive the two sums deposited; but if W. failed in doing this, the two sums
            were to be paid to plaintiff Defendant decided in favour of W.; to this
            decision plaintiff objected, and before defendant paid over the money to W.
            demanded the return of his 500l. deposited. Defendant, nevertheless, paid
            both sums to W., and plaintiff brought an action to recover his deposit:--
            Held, that the agreement was a wager; but that, although 8 & 9 Vict. c. 109,
            s. 18, which makes all contracts by way of wagering null and void, enacts
            that no action shall be brought to recover any sum of money alleged to be
            won upon nay wager, or which shall have been deposited in the bands of any
            person to abide the event of any wager, yet, on the authority of decided
            cases, that did not apply to the recovery of the sum deposited; and, that,
            therefore, plaintiff having demanded his deposit back before it had been
            paid over by defendant, he was entitled to judgment.
            ACTION for money had and received, to recover 500&L, deposited by the
            plaintiff with the defendant under the circumstances detailed in the
            judgment.
            *190 The facts, correspondence, &c., were stated at great length in the
            case, but all that is material is stated in the judgment of the Court.
            1875. Nov. 12 and 15. Ambrose, Q.C. (with him Willis), for the plaintiff.
            Robinson, Serjt. (with him J. O. Griffiths, Q.C.), for defendant.
            In addition to the cases noticed in the judgment of the Court, the following
            cases were cited for the plaintiff: Robinson v. Mearns [FN1]; Batty v.
            Marriott. [FN2] For the defendant: Pugh v. Jenkins. [FN3]

            FN1 6 D. & R. 26.

            FN2 5 C. B. 818, 827; 17 L. J. (C.P.) 215.

            FN3 1 Q. B. 631.

            Cur. adv. vult.

            1876. Jan. 17. The judgment of the Court ( ****burn, C.J. and Mellor and
            Quain, JJ.) was delivered by

            ****BURN, C.J.
            This is an action brought to recover the sum of 500l. deposited by the
            plaintiff with the defendant, under the following circumstances:--
            The plaintiff, it appears, entertains a strong disbelief in the received
            opinion as to the convexity of the earth, and with the view, it seems, of
            establishing his own opinion in the face of the world, he published in a
            journal called Scientific Opinion, an advertisement in the following words:
            "The undersigned is willing to deposit 50l. to 500l. on reciprocal terms,
            and defies all the philosophers, divines, and scientific professors in the
            united kingdom to prove the rotundity and revolution of the world, from
            scripture, from reason, or from fact. He will acknowledge that he has
            forfeited his deposit if his opponent can exhibit to the satisfaction of any
            intelligent referee a convex railway, canal, or lake."
            The challenge thus thrown out was answered and accepted by a Mr. Alfred
            Wallace, who offered to stake the like amount "on the undertaking to shew
            visibly, and to measure in feet and inches, the convexity of a canal or
            lake."
            The money was deposited accordingly in a bank, to the credit of Mr. Walsh,
            the defendant. An agreement was drawn up, whereby it was agreed that, "if
            Mr. A. R. Wallace, on or before the 15th of March, 1870, proved the
            convexity or curvature to and fro of *191 the surface of any canal, river,
            or lake, by actual measurement and demonstration, to the satisfaction of Mr.
            John Henry Walsh, of 346, Strand, and of Mr. W. Carpenter, of 7, Carlton
            Terrace, Lewisham Park, or, if they differed, to the satisfaction of the
            umpire they might appoint," Wallace was to receive the two sums deposited;
            while if Wallace failed in shewing such actual proof of convexity, the two
            sums were to be paid to the plaintiff. The agreement concluded with the
            following proviso:
            "Provided always, that, if no decision can be arrived at, owing to the death
            of either of the parties, the wager is to be annulled; or if, owing to the
            weather being so bad as to prevent a man being distinctly seen by a good
            telescope, at a distance of four miles, then a further period of one month
            is to be allowed for the experiment, or longer, as may be agreed upon by the
            referees."
            Mr. Walsh being unable to act as referee, a Mr. Coulcher was substituted for
            him. Certain tests having been agreed on, the experiment was tried on the
            Bedford Level Canal. The referees differed; Mr. Coulcher being of opinion
            that Mr. Wallace had proved, Mr. Carpenter, that he had not proved, the
            convexity of the canal. Thereupon it was proposed that the referees should
            exercise their power of appointing an umpire; but Mr. Carpenter declined to
            act further in the matter. A correspondence ensued, when it was agreed to
            leave the matter to the decision of Mr. Walsh, the present defendant, to
            whom the two referees should submit their reports, and who was to be at
            liberty to seek any further information he might deem necessary, and to
            consult Mr. Solomons, an optician, if he thought proper. Having done so, he
            decided in favour of Mr. Wallace, as having "proved to his satisfaction the
            curvature to and fro of the Bedford Level Canal between Witney Bridge and
            Welsh's Dam (six miles), to the extent of five feet more or less."
            To this decision the plaintiff objected, and before the defendant had paid
            over the money to Mr. Wallace, demanded to have the 500l. he had deposited
            restored to him. Notwithstanding which, the defendant paid the two sums of
            500l. to Wallace.
            The question for our decision is, whether upon this state of facts the
            plaintiff is entitled to recover the sum so deposited by him.
            One question which presents itself is, whether this agreement *192 amounts
            in effect to a wager; and if so, whether the plaintiff by the effect of 8 &
            9 Vict. c. 109, s. 18, is prevented from maintaining this action.
            We will, in the first instance, proceed with the case on the assumption that
            the agreement is in effect a wager.
            It is well established by numerous authorities, which it would be here
            superfluous to cite, that at common law, a wager, being a contract by A. to
            pay money to B. on the happening of a given event, in consideration of B.
            paying money to him on the event not happening, was legal, provided the
            subject-matter of the wager was one upon which a contract could lawfully be
            entered on. But by the effect of the statutes of 16 Car. 2, c. 7, of 9 Anne,
            c. 14, and of other statutes for the prevention of gaming, various forms of
            betting became stamped with illegality, and no action could be maintained by
            the winner against the loser in respect of them. Nor could any action be
            brought by the winner against the stakeholder with whom the amount of the
            wager had been deposited. Wagers not included in these statutes remained as
            before, and could be made the subject-matter of an action, although judges
            sometimes refused to try such actions, especially where the subject-matter
            of the wager was of a low or frivolous character, as unworthy to occupy the
            time of a court of justice.
            As the law now stands, since the passing of 8 & 9 Vict. c. 109, there is no
            longer, as regards actions, any distinction between one class of wagers and
            another, all wagers being made null and void at law by that statute.
            But though, where a wager was illegal, no action could be brought either
            against the loser or stakeholder by the winner, a party who had deposited
            his money with the stakeholder was not in the same predicament. If, indeed,
            the event on which the wager depended had come off, and the money had been
            paid over, the authority to pay it not having been revoked, the depositor
            could no longer claim to have it back. But if, before the money was so paid
            over, the party depositing repudiated the wager and demanded his money back,
            he was entitled to have it restored to him, and could maintain an action to
            recover it; and this, not only where, as in Hodson v. Terrill [FN4], notice
            had been *193 given to the stakeholder prior to the event being determined,
            but also, where, as in Hastelow v. Jackson [FN5], notice was given after the
            event had come off.

            FN4 1 Cr. & M. 797.

            FN5 8 B. & C. 221.

            In Hodson v. Terrill [FN6] the deposit had been made on a cricket match for
            20l. a side, and was therefore unlawful within the statute of Anne. A
            dispute having arisen in the course of the match, and one side having
            refused to play it out, the plaintiff, who had paid a deposit, claimed to
            have it returned, and it was held that he was entitled to recover.

            FN6 1 Cr. & M. 797.

            So in Martin v. Hewson [FN7], in an action for money had and received to
            plaintiff's use, the defendant having pleaded that the money had been
            deposited with him to abide the event of a ****fight, the replication, that
            before the result was ascertained the plaintiff repudiated the wager, and
            required repayment of the deposit, was held good. In Hastelow v. Jackson
            [FN8] the Court of Queen's Bench, following the prior cases of Cotton v.
            Thurland [FN9], Smith v. Bickmore [FN10], and Bate v. Cartwright [FN11],
            held that, where, money having been deposited with the stakeholder to abide
            the event of a boxing match, A., the depositor, claimed the whole sum from
            the stakeholder, as having won the fight, and threatened him with an action
            if he paid it over to B., the other combatant, which he nevertheless did by
            direction of the umpire, A. was entitled to recover the money he had
            deposited as his own stake as money had and received to his use. "If," says
            Bayley, J., "a stakeholder, pays over the money without authority from the
            party and in opposition to his desire, he does so at his own peril." These
            cases have never been overruled, and must be considered as law; although in
            Meaning v. Hellings [FN12], Alderson, B., speaks doubtingly of the decision
            in Hastelow v. Jackson [FN13], using the expression, "that case does not
            convince me, it overcomes me." But that case seems to have been decided more
            on the form of the particulars than anything else, and does not seriously
            interfere with the authority of Hastelow v. Jackson [FN14], which seems to
            us to be good law;

            FN7 10 Ex. 737; 24 L. J. (Ex.) 174.

            FN8 8 B. & C. 221.

            FN9 5 T. R. 405.

            FN10 4 Taunt. 474.

            FN11 7 Price, 540.

            FN12 14 M. & W. at p. 712.

            FN13 8 B. & C. 221.

            FN14 8 B. & C. 221.

            *194 A distinction has, however, been taken between cases in which the
            deposit was made to abide the event of an illegal wager, and others, in
            which the wager, not being prohibited by statute, or of an improper
            Character, was legally binding. In the former cases, the contract between
            the principals being null and void, the money remains in the hands of the
            stakeholder devoid of any trust in respect of the other party, and in trust
            only for the party depositing, who can at any time claim it back before it
            has been paid over. In the latter, the contract, prior to 8 & 9 Vict. c.
            109, s. 18, not being invalid, it was open to contention that money
            deposited on the wager with a stakeholder must remain with the latter to
            abide the event.
            Greater difficulty, therefore, presented itself where, prior to 8 & 9 Vict.
            c. 109, s. 18, money was deposited on a wager not illegal; and the Courts of
            King's Bench and Exchequer were at variance on this point. In Eltham v.
            Kingsman [FN15] the Court of King's Bench, consisting of Lord Ellenborough,
            C.J., Bayley, Abbott, and Holroyd, JJ., held, that even where a wager was
            legal, the authority of a stakeholder, who was also (as is the case with the
            present defendant) to decide between the parties, might be revoked and the
            deposit demanded back. "Here," says Lord Ellenborough, "before there has
            been a decision the party has countermanded the authority of the
            stakeholder." "A man," says Abbott, J., "who has made a foolish wager may
            rescind it before any decision has taken place." In the later case of Emery
            v. Richards [FN16] the Court of Exchequer, where money had been deposited on
            a wager of less than 10l. on a foot race, and therefore, prior to the
            passing of the statute 8 & 9 Vict., not illegal under the then existing
            statute, held that the plaintiff could not demand to have his stake
            returned, but must abide the event. The case of Eltham v. Kingsman [FN17]
            does not, however, appear to have been brought to the notice of the Court,
            and in our view the decision of this Court was the sounder one. We cannot
            concur in what is said in Chitty on Contracts, 8th ed., p. 574, that "a
            stakeholder is the agent of both parties, or rather their trustee." It may
            be true that he is the trustee of both parties in a certain sense, so that,
            if the event comes off and the *195 authority to pay over the money by the
            depositor be not revoked, he may be bound to pay it over. But primarily he
            is the agent of the depositor, and can deal with the money deposited so long
            only as his authority subsists. Such was evidently the view taken of the
            position of a stakeholder by this Court in the two cases of Eltham v.
            Kingsman [FN18] and Hastelow v. Jackson [FN19]; and in that view we concur.

            FN15 1 B. & Ald. 683.

            FN16 14 M. & W. 728.

            FN17 1 B. & Ald. 683.

            FN18 1 B. & Ald. 683.

            FN19 8 B. & C. 221.

            Practically, however, it is now unnecessary to decide this question, if the
            transaction under consideration is to be looked upon as a wager. For by 8 &
            9 Vict. c. 109, s. 18, it is enacted "that all contracts or agreements,
            whether by parol or in writing, by way of gaming or wagering, shall be null
            and void, and that no suit shall be brought or maintained in any court of
            law or equity for recovering any sum of money or valuable thing alleged to
            be won upon any wager, or which shall have been deposited in the hands of
            any person to abide the event on which any wager shall have been made."
            The present wager, though previously lawful, being thus rendered null and
            void, it follows that the plaintiff must be entitled to recover his deposit,
            unless that part of the enactment which provides that, "no suit shall be
            brought or maintained in any court for recovering any sum of money which
            shall have been deposited in the hands of any person to abide the event on
            which any wager shall have been made," affords an answer to the action--a
            question on which a difference of opinion exists. The question arose in
            Varney v. Hickman. [FN20] The plaintiff and one Isaacs had deposited 20l.
            each with the defendant on the event of a match between two horses. Before
            the race was run the plaintiff gave notice to the defendant that he declined
            the bet and demanded back his deposit. The plaintiff not attending to
            contest the race, Isaacs was declared the winner, and the amount of the two
            deposits was handed over to him by the defendant. An action for money had
            and received having been brought by the plaintiff to recover the amount of
            his deposit, the statute 8 & 9 Vict. c. 109, s. 18, was relied upon for the
            defence. But it was held by the Court, consisting of Maule, Cresswell, and
            Williams, JJ., that the part of *196 s. 18 relating to deposits was meant to
            apply only to the non-recovery by the winner of a sum deposited by the other
            party to abide the event, and not to the right of the depositor to recover
            back his deposit, if demanded before the money was paid over.

            FN20 5 C. B. 271; 17 L. J. (C.P.) 102.

            In the later case of Martin v. Hewson [FN21], already referred to, the Court
            of Exchequer adopted the view of the Common Pleas in Varney v. Hickman
            [FN22], Parke, B., saying:
            "According to the context, the statute prohibits the recovery of money which
            has been won in such a transaction, or has been deposited to abide the event
            of a wager, but it does not apply to the case where a party seeks to recover
            his stake upon a repudiation of the wagering contract."

            FN21 10 Ex. 737; 24 L. J. (Ex.) 174.

            FN22 5 C. B. 271; 17 L.J (C.P.) 102.

            But in Savage v. Madder [FN23], Martin, B., expressed a decided opinion that
            no action could be brought, either directly upon the contract, or in respect
            of money deposited by the winner himself in the hands of a stakeholder to
            abide the event. "It is," said the learned judge, "in fact, expressly within
            the Act of Parliament; and more than that, it is within what the Act
            intended to effect. The object of the Act was to prevent trials in courts of
            law with respect to betting contracts; and rightly so, for they are
            contracts in relation to transactions with which the time of the courts of
            law ought not to be occupied A man who makes bets must take his chance of
            getting his money. A bet ought to be a contract of honour; and if the loser
            cannot pay, no action should be maintainable in respect of the debt." What
            was thus said was, however, unnecessary to the decision of the question
            before the Court. For the plaintiff there claimed the entire stakes as his
            by the event; he had never repudiated the wager or revoked the authority of
            the stakeholder. He was seeking to enforce the wager, and was met by the
            statute and defeated by the effect of the enactment. The question again
            arose directly in the case of Graham v. Thompson [FN24], in the Court of
            Common Pleas in Ireland, where, in an action for money had and received, the
            defendant pleaded specially, "that the money was money deposited in the
            hands of the defendant to abide an event on which a wager had *197 thereupon
            been made, to wit, &c., and that that wager had not been repudiated, or any
            demand of the said money, or any part thereof, made upon him by the
            plaintiff before the event on which the said wager had been made had taken
            place, and the said wager had been decided." The plaintiff demurred to this
            defence, on the ground that it was consistent with it that the plaintiff had
            repudiated the wager before the defendant had paid over the money to the
            winner. And the Court, taking the same view as had been taken in Varney v.
            Hickman [FN25] and Martin v. Hewson [FN26], held the demurrer good. It is
            unnecessary to say what our view might have been had the matter been res
            integra; we are bound by the authority of these decisions, which, if they
            are to be reviewed, can only be reviewed in a court of appeal.

            FN23 36 L. J. (Ex.) 178.

            FN24 Ir. Rep. 2 C. L. 64.

            FN25 5 C. B. 271; 17 L. J. (Ex.) 174.

            FN26 10 Ex. 737; 24 L.J. (Ex.) 174.

            Thus far we have dealt with the agreement between the parties as a wager.
            But it was contended before us, on the argument, that this was not a wager,
            but an agreement entered into for the purpose of trying by experiment a
            question of science. We think this position altogether untenable. The
            agreement has all the essential characteristics of a wager. Each party
            stakes his money on an event to be ascertained, and he in whose favour the
            event turns out is to take the whole. The object of the plaintiff in
            offering the challenge he gave was not to ascertain a scientific fact, but
            to establish his own view in a marked and triumphant manner. To use a common
            phrase, his object was to back his own opinion. No part of the money staked
            was to go to the party by whom the experiment was to be made. Lastly, the
            parties themselves in the written agreement have spoken of it, in terms, as
            a "wager." We can have no hesitation in holding it to be such.
            But even if our view of the agreement were such as was suggested by the
            defendant's counsel, our decision would be the same, as the principle of the
            decision of the Court in the cases of Eltham v. Kingsman [FN27] and Hastelow
            v. Jackson [FN28], before cited, would appear to us to apply; according to
            which we should look upon the defendant merely as the agent of the
            plaintiff, and as no longer *198 justified in paying over the money when
            once his authority had been countermanded.

            FN27 1 B. & Ald. 683.

            FN28 8 B. & C. 221.

            But as we hold the agreement to have been a wager, and consequently that the
            case is concluded by the authorities we have referred to, it is unnecessary
            to decide this point.
            Our judgment will therefore be for the plaintiff.

            Representation

            Solicitor for plaintiff: A. E. Copp.
            Solicitor for defendant: W. Jaquet.

            Judgment for the plaintiff.

            (c) Incorporated Council of Law Reporting For England & Wales
            (1875-76) L.R. 1 Q.B.D. 189

            END OF DOCUMENT

            Copr. (c) West 2004 No Claim



            Comment


            • #7
              Legally binding contract or not?


              <[email protected]> wrote in message
              news:[email protected]
              "Tommy Pierce" <[email protected]> wrote:
              <[email protected]> wrote ...
              The proposed JREF -w- would-be ESP-prover agreement was drafted with authority like Hampden v. Walsh in mind . . .intended . . . to provide the basis for an enforceable contract and [not for a just apparent "contract" not enforceable on public policy grounds, e.g., as a "wager" that is not lawful] . . . .
              I think you've missed the point of my question. It comes down to two points: Under US law would this be a wager, as Hampden's challenge was?
              No (as I said earlier without missing the point of your earlier question).
              Why, or why not? I think this IS a wager, if I'm wrong tell me what I'm missing.
              Because you presume vaguely but without explicating specifically what a "wager" that a court would rule unenforceable as violative of some particular jurisdiction's anti-"wager" statute is (if there were such a statute that applied, although you did not say that there is in whatever are the places you have in mind) or, in common law terms, would be unenforceable "as against public policy" (re. which see further comment below for "why").

              Uh, no. I presume nothing of the sort.

              In the UK gambling is legal. However, wagering contracts are considered
              to be a matter of honour between parties, and the courts won't intervene
              if the loserdefaults.


              One also will find, however, numerous judicial rulings that purport to explain what, (based on your postings in this thread) undoubtedly, you might claim to be "wagering" or "gambling" are not that.
              [snip]
              In sum, your here implied argument apparently with Randi (and, it seems, with me) is therefore premised on your painting with much too broad a definitional brush; although under your theory as you've so far summarized it, there apparently could not be any form of personal services contract that would be enforceable (in a jurisdiction which outlaws "wagering").
              Gee, since you apparently can read my mind and know what I mean better
              than I do myself, perhaps you should apply for the million.




              And just because the challenge agreement SAYS that it is legally binding does not make it so.
              I agree that a party's unilaterally made characterization of an agreement (or, for that matter, pretty much any form of law-releavnt activity) does not, standing alone, bind the State (whether acting through its courts or otherwise). Conversely, however, your just SAYING that the Randi/JREF contract is not legally binding (or is a "wager" and, as such, unlawful as against some particular state's penal law - which, however, you have not cited - or "public policy") does not make it so either any more than would it be correct for you to point to a pile of chopped liver and to insist that it is a porterhouse steak.
              Sigh. I'm not SAYING any such thing. I'm ASKING. See the difference?
              Nor did I say anything about it being against penal law.

              Fairly - that is, provided _actually_ - read in full and context, the Randi/JREF offer to enter into the agreement plainly is not a "wager" nor any other form of gambling. Instead - and despite its characterization as a "Challenge" - the Randi/JREF is a solicitation of the performance of a service, although not a service that would itself be unlawful:

              I quote the Judge's opinion as to what made Hamden's offer a wager

              <<. The agreement has all the essential characteristics of a wager. Each
              party
              stakes his money on an event to be ascertained, and he in whose favour the
              event turns out is to take the whole. The object of the plaintiff in
              offering the challenge he gave was not to ascertain a scientific fact, but
              to establish his own view in a marked and triumphant manner. To use a common
              phrase, his object was to back his own opinion >>

              and from Randi's FAQ :
              http://www.randi.org/research/faq.html

              << It's not a contest; there are not two parties competing for the same
              prize.
              It's a challenge. It's someone who, as a result of extensive experience,
              doesn't
              believe you can do what you say you can do, daring you to do what you say
              you
              can do. It's a dare. It's not at all a friendly agreement. It's an
              adversarial
              arrangement, >>

              Kinda similar, right? This is why I think Randi's challenge is legally a
              wager.

              I make no statement about Randi's challenge. I merely ask a question.
              Why is Randi's challenge legally binding, if Hampden's wasn't ?


              I'm not actually claiming that you are wrong. I'm sure you know more
              about US law than I do. I just want you to explain the reason in simple
              terms which you have not yet done.

              Please explain either

              - some fundametal difference in the law between out two great counties OR
              - some fundamental difference between the nature of the two challenges.


              To anticipate a potential response, one difference is that a Randi applicant
              is
              not asked to stake any money on the outcome. However, he IS asked to stake
              his own reputation. He is warned that he will be held up to public
              humiliation
              and loss of reputation upon a failed challenge. He is told to gamble his
              reputation in order to win a big prize. Thus, (I think) it is a bet.


              One more question, suppose somebody today in America made a challenge
              identical to Hampden's. Would that be legally enforceable?







              Comment


              • #8
                Legally binding contract or not?

                "Tommy Pierce" <[email protected]> wrote in message
                news:[email protected] uk...
                By the way, I don't believe Hampden v. Walsh says what you say it says. If you can provide a citation, I'd like to read it.
                The Judge's opinion: Wager--Construction of Agreement--Action to recover Deposit--8 & 9 Vict. c. 109, s. 18. Plaintiff and W. deposited each 500l. with defendant, on an agreement that if W., on or before the 15th of March, 1870, proved the convexity or curvature to and fro of the surface of any canal, river, or lake, by actual measurement and demonstration, to the satisfaction of defendant, W. should receive the two sums deposited; but if W. failed in doing this, the two sums were to be paid to plaintiff Defendant decided in favour of W.; to this decision plaintiff objected, and before defendant paid over the money to W. demanded the return of his 500l. deposited. Defendant, nevertheless, paid both sums to W., and plaintiff brought an action to recover his deposit:-- Held, that the agreement was a wager; but that, although 8 & 9 Vict. c. 109, s. 18, which makes all contracts by way of wagering null and void, enacts that no action shall be brought to recover any sum of money alleged to be won upon nay wager, or which shall have been deposited in the bands of any person to abide the event of any wager, yet, on the authority of decided cases, that did not apply to the recovery of the sum deposited; and, that, therefore, plaintiff having demanded his deposit back before it had been paid over by defendant, he was entitled to judgment. ACTION for money had and received, to recover 500&L, deposited by the plaintiff with the defendant under the circumstances detailed in the judgment. *190 The facts, correspondence, &c., were stated at great length in the case, but all that is material is stated in the judgment of the Court. 1875. Nov. 12 and 15. Ambrose, Q.C. (with him Willis), for the plaintiff. Robinson, Serjt. (with him J. O. Griffiths, Q.C.), for defendant. In addition to the cases noticed in the judgment of the Court, the following cases were cited for the plaintiff: Robinson v. Mearns [FN1]; Batty v. Marriott. [FN2] For the defendant: Pugh v. Jenkins. [FN3] FN1 6 D. & R. 26. FN2 5 C. B. 818, 827; 17 L. J. (C.P.) 215. FN3 1 Q. B. 631. Cur. adv. vult. 1876. Jan. 17. The judgment of the Court ( ****burn, C.J. and Mellor and Quain, JJ.) was delivered by ****BURN, C.J. This is an action brought to recover the sum of 500l. deposited by the plaintiff with the defendant, under the following circumstances:-- The plaintiff, it appears, entertains a strong disbelief in the received opinion as to the convexity of the earth, and with the view, it seems, of establishing his own opinion in the face of the world, he published in a journal called Scientific Opinion, an advertisement in the following words: "The undersigned is willing to deposit 50l. to 500l. on reciprocal terms, and defies all the philosophers, divines, and scientific professors in the united kingdom to prove the rotundity and revolution of the world, from scripture, from reason, or from fact. He will acknowledge that he has forfeited his deposit if his opponent can exhibit to the satisfaction of any intelligent referee a convex railway, canal, or lake." The challenge thus thrown out was answered and accepted by a Mr. Alfred Wallace, who offered to stake the like amount "on the undertaking to shew visibly, and to measure in feet and inches, the convexity of a canal or lake." The money was deposited accordingly in a bank, to the credit of Mr. Walsh, the defendant. An agreement was drawn up, whereby it was agreed that, "if Mr. A. R. Wallace, on or before the 15th of March, 1870, proved the convexity or curvature to and fro of *191 the surface of any canal, river, or lake, by actual measurement and demonstration, to the satisfaction of Mr. John Henry Walsh, of 346, Strand, and of Mr. W. Carpenter, of 7, Carlton Terrace, Lewisham Park, or, if they differed, to the satisfaction of the umpire they might appoint," Wallace was to receive the two sums deposited; while if Wallace failed in shewing such actual proof of convexity, the two sums were to be paid to the plaintiff. The agreement concluded with the following proviso: "Provided always, that, if no decision can be arrived at, owing to the death of either of the parties, the wager is to be annulled; or if, owing to the weather being so bad as to prevent a man being distinctly seen by a good telescope, at a distance of four miles, then a further period of one month is to be allowed for the experiment, or longer, as may be agreed upon by the referees." Mr. Walsh being unable to act as referee, a Mr. Coulcher was substituted for him. Certain tests having been agreed on, the experiment was tried on the Bedford Level Canal. The referees differed; Mr. Coulcher being of opinion that Mr. Wallace had proved, Mr. Carpenter, that he had not proved, the convexity of the canal. Thereupon it was proposed that the referees should exercise their power of appointing an umpire; but Mr. Carpenter declined to act further in the matter. A correspondence ensued, when it was agreed to leave the matter to the decision of Mr. Walsh, the present defendant, to whom the two referees should submit their reports, and who was to be at liberty to seek any further information he might deem necessary, and to consult Mr. Solomons, an optician, if he thought proper. Having done so, he decided in favour of Mr. Wallace, as having "proved to his satisfaction the curvature to and fro of the Bedford Level Canal between Witney Bridge and Welsh's Dam (six miles), to the extent of five feet more or less." To this decision the plaintiff objected, and before the defendant had paid over the money to Mr. Wallace, demanded to have the 500l. he had deposited restored to him. Notwithstanding which, the defendant paid the two sums of 500l. to Wallace. The question for our decision is, whether upon this state of facts the plaintiff is entitled to recover the sum so deposited by him. One question which presents itself is, whether this agreement *192 amounts in effect to a wager; and if so, whether the plaintiff by the effect of 8 & 9 Vict. c. 109, s. 18, is prevented from maintaining this action. We will, in the first instance, proceed with the case on the assumption that the agreement is in effect a wager. It is well established by numerous authorities, which it would be here superfluous to cite, that at common law, a wager, being a contract by A. to pay money to B. on the happening of a given event, in consideration of B. paying money to him on the event not happening, was legal, provided the subject-matter of the wager was one upon which a contract could lawfully be entered on. But by the effect of the statutes of 16 Car. 2, c. 7, of 9 Anne, c. 14, and of other statutes for the prevention of gaming, various forms of betting became stamped with illegality, and no action could be maintained by the winner against the loser in respect of them. Nor could any action be brought by the winner against the stakeholder with whom the amount of the wager had been deposited. Wagers not included in these statutes remained as before, and could be made the subject-matter of an action, although judges sometimes refused to try such actions, especially where the subject-matter of the wager was of a low or frivolous character, as unworthy to occupy the time of a court of justice. As the law now stands, since the passing of 8 & 9 Vict. c. 109, there is no longer, as regards actions, any distinction between one class of wagers and another, all wagers being made null and void at law by that statute. But though, where a wager was illegal, no action could be brought either against the loser or stakeholder by the winner, a party who had deposited his money with the stakeholder was not in the same predicament. If, indeed, the event on which the wager depended had come off, and the money had been paid over, the authority to pay it not having been revoked, the depositor could no longer claim to have it back. But if, before the money was so paid over, the party depositing repudiated the wager and demanded his money back, he was entitled to have it restored to him, and could maintain an action to recover it; and this, not only where, as in Hodson v. Terrill [FN4], notice had been *193 given to the stakeholder prior to the event being determined, but also, where, as in Hastelow v. Jackson [FN5], notice was given after the event had come off. FN4 1 Cr. & M. 797. FN5 8 B. & C. 221. In Hodson v. Terrill [FN6] the deposit had been made on a cricket match for 20l. a side, and was therefore unlawful within the statute of Anne. A dispute having arisen in the course of the match, and one side having refused to play it out, the plaintiff, who had paid a deposit, claimed to have it returned, and it was held that he was entitled to recover. FN6 1 Cr. & M. 797. So in Martin v. Hewson [FN7], in an action for money had and received to plaintiff's use, the defendant having pleaded that the money had been deposited with him to abide the event of a ****fight, the replication, that before the result was ascertained the plaintiff repudiated the wager, and required repayment of the deposit, was held good. In Hastelow v. Jackson [FN8] the Court of Queen's Bench, following the prior cases of Cotton v. Thurland [FN9], Smith v. Bickmore [FN10], and Bate v. Cartwright [FN11], held that, where, money having been deposited with the stakeholder to abide the event of a boxing match, A., the depositor, claimed the whole sum from the stakeholder, as having won the fight, and threatened him with an action if he paid it over to B., the other combatant, which he nevertheless did by direction of the umpire, A. was entitled to recover the money he had deposited as his own stake as money had and received to his use. "If," says Bayley, J., "a stakeholder, pays over the money without authority from the party and in opposition to his desire, he does so at his own peril." These cases have never been overruled, and must be considered as law; although in Meaning v. Hellings [FN12], Alderson, B., speaks doubtingly of the decision in Hastelow v. Jackson [FN13], using the expression, "that case does not convince me, it overcomes me." But that case seems to have been decided more on the form of the particulars than anything else, and does not seriously interfere with the authority of Hastelow v. Jackson [FN14], which seems to us to be good law; FN7 10 Ex. 737; 24 L. J. (Ex.) 174. FN8 8 B. & C. 221. FN9 5 T. R. 405. FN10 4 Taunt. 474. FN11 7 Price, 540. FN12 14 M. & W. at p. 712. FN13 8 B. & C. 221. FN14 8 B. & C. 221. *194 A distinction has, however, been taken between cases in which the deposit was made to abide the event of an illegal wager, and others, in which the wager, not being prohibited by statute, or of an improper Character, was legally binding. In the former cases, the contract between the principals being null and void, the money remains in the hands of the stakeholder devoid of any trust in respect of the other party, and in trust only for the party depositing, who can at any time claim it back before it has been paid over. In the latter, the contract, prior to 8 & 9 Vict. c. 109, s. 18, not being invalid, it was open to contention that money deposited on the wager with a stakeholder must remain with the latter to abide the event. Greater difficulty, therefore, presented itself where, prior to 8 & 9 Vict. c. 109, s. 18, money was deposited on a wager not illegal; and the Courts of King's Bench and Exchequer were at variance on this point. In Eltham v. Kingsman [FN15] the Court of King's Bench, consisting of Lord Ellenborough, C.J., Bayley, Abbott, and Holroyd, JJ., held, that even where a wager was legal, the authority of a stakeholder, who was also (as is the case with the present defendant) to decide between the parties, might be revoked and the deposit demanded back. "Here," says Lord Ellenborough, "before there has been a decision the party has countermanded the authority of the stakeholder." "A man," says Abbott, J., "who has made a foolish wager may rescind it before any decision has taken place." In the later case of Emery v. Richards [FN16] the Court of Exchequer, where money had been deposited on a wager of less than 10l. on a foot race, and therefore, prior to the passing of the statute 8 & 9 Vict., not illegal under the then existing statute, held that the plaintiff could not demand to have his stake returned, but must abide the event. The case of Eltham v. Kingsman [FN17] does not, however, appear to have been brought to the notice of the Court, and in our view the decision of this Court was the sounder one. We cannot concur in what is said in Chitty on Contracts, 8th ed., p. 574, that "a stakeholder is the agent of both parties, or rather their trustee." It may be true that he is the trustee of both parties in a certain sense, so that, if the event comes off and the *195 authority to pay over the money by the depositor be not revoked, he may be bound to pay it over. But primarily he is the agent of the depositor, and can deal with the money deposited so long only as his authority subsists. Such was evidently the view taken of the position of a stakeholder by this Court in the two cases of Eltham v. Kingsman [FN18] and Hastelow v. Jackson [FN19]; and in that view we concur. FN15 1 B. & Ald. 683. FN16 14 M. & W. 728. FN17 1 B. & Ald. 683. FN18 1 B. & Ald. 683. FN19 8 B. & C. 221. Practically, however, it is now unnecessary to decide this question, if the transaction under consideration is to be looked upon as a wager. For by 8 & 9 Vict. c. 109, s. 18, it is enacted "that all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void, and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made." The present wager, though previously lawful, being thus rendered null and void, it follows that the plaintiff must be entitled to recover his deposit, unless that part of the enactment which provides that, "no suit shall be brought or maintained in any court for recovering any sum of money which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made," affords an answer to the action--a question on which a difference of opinion exists. The question arose in Varney v. Hickman. [FN20] The plaintiff and one Isaacs had deposited 20l. each with the defendant on the event of a match between two horses. Before the race was run the plaintiff gave notice to the defendant that he declined the bet and demanded back his deposit. The plaintiff not attending to contest the race, Isaacs was declared the winner, and the amount of the two deposits was handed over to him by the defendant. An action for money had and received having been brought by the plaintiff to recover the amount of his deposit, the statute 8 & 9 Vict. c. 109, s. 18, was relied upon for the defence. But it was held by the Court, consisting of Maule, Cresswell, and Williams, JJ., that the part of *196 s. 18 relating to deposits was meant to apply only to the non-recovery by the winner of a sum deposited by the other party to abide the event, and not to the right of the depositor to recover back his deposit, if demanded before the money was paid over. FN20 5 C. B. 271; 17 L. J. (C.P.) 102. In the later case of Martin v. Hewson [FN21], already referred to, the Court of Exchequer adopted the view of the Common Pleas in Varney v. Hickman [FN22], Parke, B., saying: "According to the context, the statute prohibits the recovery of money which has been won in such a transaction, or has been deposited to abide the event of a wager, but it does not apply to the case where a party seeks to recover his stake upon a repudiation of the wagering contract." FN21 10 Ex. 737; 24 L. J. (Ex.) 174. FN22 5 C. B. 271; 17 L.J (C.P.) 102. But in Savage v. Madder [FN23], Martin, B., expressed a decided opinion that no action could be brought, either directly upon the contract, or in respect of money deposited by the winner himself in the hands of a stakeholder to abide the event. "It is," said the learned judge, "in fact, expressly within the Act of Parliament; and more than that, it is within what the Act intended to effect. The object of the Act was to prevent trials in courts of law with respect to betting contracts; and rightly so, for they are contracts in relation to transactions with which the time of the courts of law ought not to be occupied A man who makes bets must take his chance of getting his money. A bet ought to be a contract of honour; and if the loser cannot pay, no action should be maintainable in respect of the debt." What was thus said was, however, unnecessary to the decision of the question before the Court. For the plaintiff there claimed the entire stakes as his by the event; he had never repudiated the wager or revoked the authority of the stakeholder. He was seeking to enforce the wager, and was met by the statute and defeated by the effect of the enactment. The question again arose directly in the case of Graham v. Thompson [FN24], in the Court of Common Pleas in Ireland, where, in an action for money had and received, the defendant pleaded specially, "that the money was money deposited in the hands of the defendant to abide an event on which a wager had *197 thereupon been made, to wit, &c., and that that wager had not been repudiated, or any demand of the said money, or any part thereof, made upon him by the plaintiff before the event on which the said wager had been made had taken place, and the said wager had been decided." The plaintiff demurred to this defence, on the ground that it was consistent with it that the plaintiff had repudiated the wager before the defendant had paid over the money to the winner. And the Court, taking the same view as had been taken in Varney v. Hickman [FN25] and Martin v. Hewson [FN26], held the demurrer good. It is unnecessary to say what our view might have been had the matter been res integra; we are bound by the authority of these decisions, which, if they are to be reviewed, can only be reviewed in a court of appeal. FN23 36 L. J. (Ex.) 178. FN24 Ir. Rep. 2 C. L. 64. FN25 5 C. B. 271; 17 L. J. (Ex.) 174. FN26 10 Ex. 737; 24 L.J. (Ex.) 174. Thus far we have dealt with the agreement between the parties as a wager. But it was contended before us, on the argument, that this was not a wager, but an agreement entered into for the purpose of trying by experiment a question of science. We think this position altogether untenable. The agreement has all the essential characteristics of a wager. Each party stakes his money on an event to be ascertained, and he in whose favour the event turns out is to take the whole. The object of the plaintiff in offering the challenge he gave was not to ascertain a scientific fact, but to establish his own view in a marked and triumphant manner. To use a common phrase, his object was to back his own opinion. No part of the money staked was to go to the party by whom the experiment was to be made. Lastly, the parties themselves in the written agreement have spoken of it, in terms, as a "wager." We can have no hesitation in holding it to be such. But even if our view of the agreement were such as was suggested by the defendant's counsel, our decision would be the same, as the principle of the decision of the Court in the cases of Eltham v. Kingsman [FN27] and Hastelow v. Jackson [FN28], before cited, would appear to us to apply; according to which we should look upon the defendant merely as the agent of the plaintiff, and as no longer *198 justified in paying over the money when once his authority had been countermanded. FN27 1 B. & Ald. 683. FN28 8 B. & C. 221. But as we hold the agreement to have been a wager, and consequently that the case is concluded by the authorities we have referred to, it is unnecessary to decide this point. Our judgment will therefore be for the plaintiff. Representation Solicitor for plaintiff: A. E. Copp. Solicitor for defendant: W. Jaquet. Judgment for the plaintiff. (c) Incorporated Council of Law Reporting For England & Wales (1875-76) L.R. 1 Q.B.D. 189 END OF DOCUMENT Copr. (c) West 2004 No Claim
                Thanks Tommy. I asked for the citation because your description of the
                case: "A flat earther offered a prize to anyone that could scientifically
                prove the curvature of the Earth, then refused to pay" differed from my
                instinct. I have encountered cases where rewards or prizes were offered for
                such things as: (a) capturing criminals, (b) proving that longitude could be
                determined by use of a clock, (c) the first aircraft flight across the
                English channel, (d) the first human powered aircraft flight across [some
                body of water which I have forgotten], (e) invention and demonstration of a
                perpetual motion machine. As far as I can recall, in the cases I heard
                about which reached an appellate court, the contract was upheld or was
                defeated on grounds other than illegal purpose or wagering. In those cases,
                consideration and the technical mechanism of acceptance were the issues. I
                couldn't reconcile those cases in my mind with your description, so I was
                hoping the Hampden case was distinguishable because it involved an actual,
                indisputable wager.

                I was right, but it did me no good. The Hampden case did indeed involve an
                actual, indisputable, wager. But that's not helpful because the Randy
                contract has so many similarities to the Hampden contract that it could be
                construed as a wager by the same reasoning. So the solution must be that
                Hampden is not current authority.

                In Britain, the answer is easy: The Gambling Act of 2005, which I presume
                was passed without change, is described at:
                http://www.theiaga.org/pdfs/hh_guide.pdf#search='prizegambling%20contract'
                "The bill repeals much of the ancient legislation, including the Gaming Acts
                of 1710, 1835, 1845 and 1892, which for hundreds of years have provided that
                gambling contracts are unenforceable. . . . [and] expressly provides that
                contracts will be capable of being enforced irrespective of the fact that it
                is a contract relating to gambling."

                I didn't find anything specific to Florida concerning prizes for doing
                things like those I listed above as (a) through (e). I did find the
                definition of gambling in a criminal law context. 2005 Florida Statutes,
                Chapter 849.08 defines gambling as: "Whoever plays or engages in any game at
                cards, keno, roulette, faro or other game of chance, at any place, by any
                device whatever, for money or other thing of value, shall be guilty of a
                misdemeanor of the second degree, punishable as provided in s. 775.082 or s.
                775.083." And Chapter 849.26 provides that gambling contracts are void.

                I don't think a Florida court would find the Randy contract to be a game of
                chance. I didn't try to look up any cases, but I suspect a Florida court
                would follow the majority rule: "In other U.S. jurisdictions, the majority
                rule seems to be that 'gambling,' unless changed by statute, consists of any
                activity with three elements: consideration, chance, and prize. If any one
                or more of these elements is missing, the activity is not gambling."
                http://www.liebertpub.com/media/content/igl_02_p11-52.pdf#search='prizegambling%20contract'
                That source goes on to say that consideration for purposes of this
                definition must be money paid by the contestant for the chance to win with
                the money flowing to the promoter. (Unlike consideration for purposes of
                determining that there is a valid contract, which may be as you described,
                the activity of trying to win and the risk of embarrassment if the
                contestant loses.)

                I think the Randy contract would be valid and enforceable under Florida law
                because it doesn't involve a game of chance and because the special type of
                consideration needed for gambling contracts (money contributed by the
                contestant) is not present.

                This answer must not be relied on as legal advice for the reasons posted
                here: http://www.msnusers.com/1LawChat/Doc...Disclaimer.doc



                McGyver


                Comment


                • #9
                  Legally binding contract or not?

                  "Tommy Pierce" <[email protected]> repetitively said/asked:
                  In the UK . . . wagering contracts are considered to be a matter of honour between parties, and the courts won't intervene if the loser defaults.
                  In the U.S., the courts no longer pay much attention to these sorts of
                  fictive rationalizations, that "honour" is the primary interest at
                  stake between the litigating parties, in particular, or societally,
                  more generally, when the loser defaults ("Welshes"?) in paying a
                  monetary bet and litigation eventuates, and instead now recognize the
                  more prevailing reality in this connection, that contested litigation
                  arising from an unpaid wager in the U.S. now mostly concerns who
                  should/needn't pay who $$.
                  . . . [T]he Judge's opinion as to what made Hamden's offer a wager [said]:
                  The agreement has all the essential characteristics of a wager. Each party stakes his money on an event to be ascertained, and he in whose favour the event turns out is to take the whole. The object of the plaintiff in offering the challenge he gave was not to ascertain a scientific fact, but to establish his own view in a marked and triumphant manner. To use a common phrase, his object was to back his own opinion
                  and from Randi's FAQ : http://www.randi.org/research/faq.html
                  It's not a contest; there are not two parties competing for the same prize. It's a challenge. It's someone who, as a result of extensive experience, doesn't believe you can do what you say you can do, daring you to do what you say you can do. It's a dare. It's not at all a friendly agreement. It's an adversarial arrangement, Kinda similar, right?
                  Yes. Kinda similar. But (as also earlier shown) both these
                  quotations might also be fairly used to describe most other kinds of,
                  "If you do [actA] and if [resultY] occurs, I promise to pay you [$#]"
                  contracts, which are routinely enforceable. Other examples include
                  virtually all kinds of insurance agreements, as noted earlier, and
                  also a wide variety of financial investment transaction (and many
                  variations(, e.g., "swaps" and "straddles" and arguably all kinds of
                  "derivatives"), most agreements to pay an employee a bonus if some
                  sort of not presently known or within the employee's or employer's
                  control quota is realized; etc., etc.
                  This is why I think Randi's challenge is legally a wager.
                  You didn't formulate your intitiating posting/query in terms of
                  Randi's challenge but, rather, in terms of whether, if Randi/JREF and
                  an applicant were to enter into the _contract_ containing all the
                  terms/provisions that Randi/JREF offer, that agreement would be
                  enforceable by and, if defaulted, enforced in Fla. or in most other
                  U.S. courts (and so here, again, I remind you of the common corollary
                  to a point you made earlier - i.e., that contracting parties'
                  characterizations of what they're about to agree to are not
                  controlling when the parties enter into a written agreement that
                  states/memorializes all the terms/provisions of their written
                  contract).
                  I make no statement about Randi's challenge. I merely ask a question. Why is Randi's challenge legally binding, if Hampden's wasn't ?
                  There are many reasons of which perhaps the first (and most obvious)
                  is that Hampden was decided in Gt. Britain, not in the U.S., notably
                  more than one hundred years ago, and that times have changed and that
                  different standards of law apply in different jurisdictions.

                  Even so, if you had made the sort of argument your semi-rhetorical
                  "questions" imply thirty or forty years ago with respect to the U.S.
                  (and, comparatively more so, earlier), you would have found more
                  support for the conclusion for which you impliedly argue than you
                  would presently.

                  As I've already reminded you, the history of judicial rulings in the
                  U.S. does reflect parallels to the sort of judge opted for abstention
                  to which you refer in Gt. Britain; although even in Gt. Britain, to
                  take into account changing political/cultural/economic realities, one
                  can easily find numerous judicial rulings distinguishing (and, even
                  when unable coherently to distinguish, avoiding) Hampden and like
                  (again: nineteenth century and earlier) rulings and also although, now
                  in the U.S., rationalized predominantly on asserted "public policy"
                  grounds.

                  (An arguably fertile sub-area for political/cultural and
                  legal/historical criticism, one for which perhaps most anti-gambling
                  "conservatives" appear to be comfortable, might fairly be
                  characterized as "judicial activism" in this respect in effect begging
                  the question whether judges compared with legislatures ought be the
                  ones to determine then rule as an arm of government what "public
                  policy" ought be if, even if in the particular jurisdiction, most or
                  all forms of gambling/betting are unlawful in the criminal law sense
                  but if the legislature had not enacted a statute barring suing on or
                  recovery in a breach of contract lawsuit for an unpaid bet. But if
                  you're not just "trolling" and instead actually interested in this
                  sort of thing, a perhaps typical example of a judicial ruling
                  reflecting this history and changing standards - like others in other
                  U.S. states could easily be given - is Intercontinental Hotels, etc.
                  v. Golden, 15 N.Y.2d 9, 203 N.E.2d 210 (1964), and you can if you want
                  read the earlier rulings and other authority cited therein.)
                  I'm not actually claiming that you are wrong. I'm sure you know more about US law than I do. I just want you to explain the reason in simple terms which you have not yet done.
                  We disagree whether I've done this already. I therefore here need
                  only add if you wish more generally: For the most part, U.S. law,
                  including U.S. state and federal judicial rulings influenced by and
                  also purporting to apply "common law" principles began long ago to
                  abandon formalism and instead to address competing economic interests.
                  These include and also reflect not just the one-with-one dispute of
                  any two particular litigants (e.g., a bettor who has not paid a
                  gambling I.0.U.) but also political/economic interests (e.g., the
                  influence on legislatures and the courts of large insurance companies,
                  gambling/resort hotels, etc.) and broader ones (e.g., precursors of
                  "globalism" within the U.S. re. how/when a court in stateA having
                  jurisdiction over plaintiff and defendant ought/oughtn't enforce an
                  obligation created in stateB which might violate stateA "public
                  policy" if, e.g., wagering is a crime in stateA but not violate stateB
                  public policy).
                  Please explain either- some fundametal difference in the law between out two great counties OR- some fundamental difference between the nature of the two challenges.
                  I don't know what you mean by "fundamental difference" although one
                  readily can point to any number of differences. I've already
                  summarized numerous reasons why . . . well, . . . I would be willing
                  to bet $$ that an agreement offered by Randi/JREF, if actually entered
                  into, would be enforced in the sense that Randi/JREF would be required
                  to pay if they did not do to a provably successful claimant (as they
                  defined "claimant" in their offer and proffered agreement).


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