The Naked Promise

This was a phrase we heard so often in law school that I briefly considered (un)dressing for a Halloween party to represent the concept. I doubt they use it anymore; it might suggest some kinda sexual impropriety. (Note to self: ask daughter, a Harvard 2L, if she has ever heard it.)
But here’s the basic principle: a “naked” promise, one unsupported by some “consideration”, is unenforceable. I think the entire aphorism may be “Upon a naked promise no action will lie” ( hoo boy, it just gets more’n’ more salacious!)
Another word for the “consideration” necessary to support a promise, or “clothe” it with legal force, would be—brace yourself!—“Quid pro quo”.
That’s right: unless you have “bribed” your interlocutor to induce him to keep his word to you, you’re outta luck, you poor chump.
The party who wants to enforce a promise he has received must show that he has either conferred some benefit,upon, or incurred some detriment to the benefit of, the promissor , in exchange for the promise, or at least that mutual promises were exchanged. “Both parties [to a contract] must be bound, or neither is bound.” ( uh-oh, kinkier and kinkier…)

Why WOULDN’T , and why SHOULDN’T, a US President demand something in exchange for billions of dollars we give to Ukraine? Wouldn’t he be a gormless fool not to do so?
And Biden, at the time the alleged conduct was going on, was not just a “political rival”; he was the US Vice President, AND he is on tape bragging that Obama knew about and sanctioned his actions.
“Quid pro quo” is not some nefarious practice. It is the very engine of all commerce, financial and interpersonal, it is what makes possible the great universal network of getting and spending upon which all material prosperity and progress depends.
But then, that’s precisely what the Dems want to destroy— innit?

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11 thoughts on “The Naked Promise”

  1. I was taking President Trump’s remarks about investigating corruption as encouragement for President Zalensky.

    Zalensky had been a comedian whose show frequently featured corruption in government for laugh lines.   He ran on an anti-corruption campaign theme.

    President Trump was simply encouraging Zalensky to keep his promises to his voters.   (Imagine that.)

    Even if prominent Americans were included in the corruption investigations.

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  2. Your point in your last paragraph is spot on. But then everything that has been alleged against this President has been normal behavior that is unliked.

    My Marine buddies and I have these discussions a lot. Most of the comments that I’’ve heard have been to the tune that, “We don’t necessarily LIKE Trump, but he’s doing some good things.” I have come to appreciate that he’s doing a LOT of good things, that he’s actually doing the things he said he was going to do, and that he has done more in a shorter time than any previous president. He has also reset what we expect from our government. His administration has actually gotten a LOT done. I just spent 2 hours at the Illinois Sec of State office getting my license renewed. It consisted mostly of reading my book with I presciently brought with me. Other than that, I spent 30 seconds on an eye test, 30 seconds on a picture, and a minute answering a few questions and verifying my information – PLUS, of course, paying for this “privilege” to move about the country as I see fit.

    So ultimately I don’t care  what he’s like. I take him at his actions, none of which I disagree with, contrary to some of my Marine buddies who want us to stay in that sh**hole, the Middle East.

    I stand with you.

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  3. I have not heard it in any of my classes.

    Also, what I wouldn’t give to have attended some of those law school parties you mentioned. Everyone is so buttoned down these days.

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  4. I had a conversation about this with a couple of my wife’s Leftist friends and I stated he is not the first to do this. Their reply was literally, “he just doesn’t do it correctly.” So we have naked promises and naked hypocrisy.

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  5. So a Naked Promise is just a contractual (strip)tease?

    Really interesting take on this, Hypatia.  This issue is a non-starter.  It is not changing anyone’s mind.   It is just as dead of an issue as Jeffrey Epstein, who did not kill himself.

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  6. The sudden popularity of the term “quid pro quo” is an example of the latest successful tactic in progressive Alinskyite politics.  They take a portentous, often legally damning, phrase and use it in a context where only the connotation remains.

    “Quid pro quo” is commonly an important criteria for determining whether a law has been broken — this is because it is explicitly written into the law as a test.  A specific usage of this sort is in the law defining sexual harassment.  Paraphrasing here, but there are IIRC two ways to “complete the offense.”  One is persistent unwanted attention of a sexual, salacious, or romantic nature.  This is not a bad stipulation, as it leaves the door open to flirting, dating, invites, and even (gasp!) compliments.  There are still minefields, but if you can find sane people to apply standards to a particular case, the law will protect you so long as your flirt or compliment was not obviously unwelcome or inappropriately persistent.  Digging into that a bit, an outrageous proposition (“Wanna shag, Baybee?”)  out of the blue cannot really be defended on the grounds that it is obviously *not* unwelcome, as the nature of even a one-time prop like that is already way over the line for most people in a professional setting.  Yet a gentle flirt could be repeated several times without busting the line if it is well-mannered and leaves room for a clear turn-down, and still not be considered harassment, because having failed to be outrageous, it also fails to be both persistent and unwanted.  Once the turn-down is made clear (clear enough), then any further repetition would be at hazard of crossing the line.  So I feel that the law as it is taught for federal employment and management purposes is quite well-constructed.  So “persistent and unwanted” is a reasonable standard for sane people to live with, to work with, and by which to evaluate the conduct and claims of others, when the trouble starts.  Of course, if you are not fortunate enough to be examined by sane people, then you never stood a chance and the law will not help you except perhaps upon appeal.  Public insanity is no justification for responding with insane laws.

    The other way to get on the wrong side of this, is to offer a “quid pro quo” which mingles romantic (or less decorous) conduct and professional results.  Typically, this requires that the person making the offer occupies a position of power or influence, such as supervising or operating in the HR or other leadership machinery of the organization which pays the checks of the person who receives the “offer”.  Yet not all power and influence is so easy to capture: it’s often said (by me) that an employee actually has more power over the boss than the boss does over the employee.  This is true in dysfunctional organizations, and since most organizations are certifiable, I find that this statement is in general true.  Poop rolls downhill, but failure streaks up the mountain until it finds  accountability, and since the vast majority of junior and middle managers are awful at holding people accountable, a lot of this “reverse” quid pro quo is possible.

    So it makes sense that the law stops at “quid pro quo” ad does not attempt to describe further what the nature of the offer must be in order to qualify.  Note that in any of the examples used so far, accompanying the example with an offer of professional opportunity (or the threat of professional difficulty) means that no matter how gentle or otherwise unobjectionable the flirt (or the pass, or the compliment), adding a quid pro quo means that it meets the definition of sexual harassment.

    So a lot of ink is spilled arguing about the existence of a quid pro quo, because this is dispositive of a breach of the law — but *only in the context of violation of a particular law*.  As Hypatia rightly points out, quid pro quo is not illegal — it’s not even a bad or even *neutral* idea!  It’s a good idea, and the basis of all successful life on earth.  Yet now we are supposed to believe that if there was a quid pro quo, then Trump has done some terrible thing.

    If this sounds familiar, it should: Hillary Clinton was let off the hook by James Comey because there was no “intent” that he could perceive; that is, no specific intent to break the law.  Yet this is as they say “not eve wrong”.  It’s an utter non-sequitur.  First, the law does not require demonstrated intent.  Handling of classified (and even unclassified but sensitive) material is premised upon dereliction or negligence in the face of acknowledged duty and constructive knowledge.  When it’s your job to get it right and you get it wrong, you have failed, and when the penalty for certain failures is jail time, then simple, even innocent failure is indeed sufficient to complete the offense.  Professional negligence by architects can result in jail time once the bodies are buried.

    Second, nobody ever gets banged up for saying “I would like to break a law today.”  This is the second fallacy in Comey’s ridiculous assessment.  Intent is about committing acts, not about violating statutes.   This is meaningless, but it allowed Comey to speak in terms of law in general and telepathy rather than of acts committed and  specific laws broken.

    So this is the elft’s shiny new bicycle — words stripped from the case-making or case-breaking sections of laws and plopped into headlines as if they meant something without context.

    Just as the “slippery slope” argument is not itself a fallacy but often contributes to one, neither is “quid pro quo” a damning phrase,  nor “demonstrated intent” a high bar to meet unless explicitly required in a law.

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  7. Robert A. McReynolds:
    I have not heard it in any of my classes.

    thats sad.  I think these various aphorisms and “maxims” as they were called in equity (do you know what I mean by that?)  were like an occasional sorbet, a break from the dry, tough fare we had to digest so much of.
    But a lot of ‘em were sexist, which probably explains why they’ve disappeared.

    Robert, I’d be interested to hear about your contracts class.  My daughter’s contracts book started,  not with a case, but with an essay to the effect that freedom of contract had suffered a “demise”.  Did you read Hawkins v. McGee?  That was traditionally the first case in all the texts.  My daughter said she took a Halloween tour of the library at H and one of the exhibits is  a model of the Hairy Hand…

     

    Also, what I wouldn’t give to have attended some of those law school parties you mentioned. Everyone is so buttoned down these days.

    I’m glad you said that, because when I say it, it sounds like I’m just idealizing the experience in memory.  But no: in the mid-late 1970s, everybody  was on the make, all  the time.  Constant flirting (O god, the excitement! can people still do that?) and a few of my classmates began law school already married, and ended up RE-married to one of their classmates.  We all observed the progress of such affairs, intense conversations in the cafeteria ( well, it wasn’t college, there were no dorms!)  It was hot, hot hot.  Eat your heart out! 😜

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  8. For Robert and any other Ratty pups born too late, I highly recommend John Updike’s novel  Memories of the Ford Administration.
    (
    Helloooo, is anybody still reading this thread?  Cuz I really sincerely hope everybody reads or re-reads that book!)

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  9. Hypatia:
    For Robert and any other Ratty pups born too late, I highly recommend John Updike’s novel  Memories of the Ford Administration.
    (
    Helloooo, is anybody still reading this thread?  Cuz I really sincerely hope everybody reads or re-reads that book!)

    Of course I am “still” reading this thread.  I am always behind the curve; the cutting edge is too uncomfortable a seat for me!  Yesterday it snowed all over the leaves I am supposed to be raking, so there is time to consider your Updike recommendation.  Why should I read this or any book of his?  My impression from flipping through a volume or two was crass, crude, and coarse.  Convince me, then.

    So Gerald Ford, prez 1974-1977 – I did not pay overmuch attention to political details at that time, having a great deal to do in other spheres.  Those times were wild, as you say.  In October I made pilgrimage to the veterinary alma mater; they maintain on the walls of a certain long hallway an ongoing series of framed class photos from late C19 to the present.  Frock coats and cravats;  suitcoats and standup collars;  shirts and ties; military uniforms at near 100% for 1946 and 1947;  shirts and skinny ties;  then BOOM!  The class of 1975 smirks out of their photos with their eyes barely focused, hair deliberately messy and nasty, and clothes the stupidest, loudest, foolishest, proudly obnoxious.  In subsequent class years the quotient of Obnoxious Defiance declined expodentially.   As I strolled along the series, creating a sort of OD bar graph in my head, I couldn’t help wondering what other social parameters would correlate with the OD quotient.  Number of college grads attaining employment with government or lefty activist groups?  The observed shift from membership in leftist political parties to the environmentalist movement?  The jump in the divorce rate?

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  10. jzdro:

    Hypatia:
    For Robert and any other Ratty pups born too late, I highly recommend John Updike’s novel  Memories of the Ford Administration.
    (
    Helloooo, is anybody still reading this thread?  Cuz I really sincerely hope everybody reads or re-reads that book!)

    Of course I am “still” reading this thread.  I am always behind the curve; the cutting edge is too uncomfortable a seat for me!  Yesterday it snowed all over the leaves I am supposed to be raking, so there is time to consider your Updike recommendation.  Why should I read this or any book of his?  My impression from flipping through a volume or two was crass, crude, and coarse.  Convince me, then.

    Dear Jzdro, in my humble opinion, for one of the same reasons we read Austen today:  to find out what life was like when she lived.  I think people in future will read Updike that way.  I don’t know which books you looked into.  Have you read the Rabbit series?  Toward the End of Time?   Oh he wrote so many, I need to peruse a list of his titles to tell you my faves.

    “Crude”, yeah, I reckon.  When I heard he  had died, I thought, all unbidden,”The great god Pan is dead!”

    So Gerald Ford, prez 1974-1977 – I did not pay overmuch attention to political details at that time, having a great deal to do in other spheres.  Those times were wild, as you say.  In October I made pilgrimage to the veterinary alma mater; they maintain on the walls of a certain long hallway an ongoing series of framed class photos from late C19 to the present.  Frock coats and cravats;  suitcoats and standup collars;  shirts and ties; military uniforms at near 100% for 1946 and 1947;  shirts and skinny ties;  then BOOM!  The class of 1975 smirks out of their photos with their eyes barely focused, hair deliberately messy and nasty, and clothes the stupidest, loudest, foolishest, proudly obnoxious.  In subsequent class years the quotient of Obnoxious Defiance declined expodentially.   As I strolled along the series, creating a sort of OD bar graph in my head, I couldn’t help wondering what other social parameters would correlate with the OD quotient.  Number of college grads attaining employment with government or lefty activist groups?  The observed shift from membership in leftist political parties to the environmentalist movement?  The jump in the divorce rate?

    yeah, probably all of the above.  I was responding to RmcR’s “buttoned down” remark.  Okay, it wasn’t all good— but it sure as hell wasnt all bad!

    P,S. The book isn’t about Ford himself, not at all…

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