So the notion of a peppercorn is that both sides need to get something in order for a contractual agreement to be binding.
However, a bare promise, with no consideration flowing in the opposite direction, can still be legally enforced under the doctrine of "reliance". The details vary by state, but the basic concept is that if one party makes a promise and the other party reasonably relies on that promise to its detriment (i.e., buys raw materials to build something for the promising party), then the promise can be enforced. This doctrine is known as "promissory estoppel" or simply "section 90 reliance".
The problem with promissory estoppel is that the promise can be terminated.
Suppose in 2017 I promised you can graze your sheep on my field. Today, desiring to now keep cattle, I tell you that from next spring (so 2024) I'll have cows on this land, so you'll need to find somewhere else for your sheep.
Courts won't buy the theory that I'm estopped. It was reasonable for you to rely on my promise yesterday, it'd be reasonable tomorrow - but a year after you received notice? Not going to fly.
And the problem with many Peppercorn contracts is that they're about super long term situations, such as long leases, where a 125 year period is normal even though that means the initial contracted parties - if human - will likely be long dead by the time the term ends even if it isn't extended. Thus, we need to ensure the law recognises that this is permanent, or at least, very long term.
Sure, incurring additional detrimental reliance after notice of revocation is not compensable, but that doesn't mean that I couldn't recover — even under your hypo.
For example, if I was offered a long term grazing contract in 2021 at favorable rates, and I passed on it because I was able to graze with you, I could claim that the 2021 act was reasonable reliance and that if I have to pay more for a grazing contract now, I should be able to recover the difference.
Of course, the landowner would argue that it isn't reasonable to pass up on a deal on grazing without first checking with the landowner to make sure the deal was good for the foreseeable future. This would all come down to facts and circumstances (as all reasonableness determinations do), including the duration of the historical practice, whether anything material had changed since then, etc.
Is it better to have a contract? Absolutely. But as a seasoned lawyer will tell you, it's possible to kill a deal by papering it to death. A rancher might put it differently: don't look a gift horse in the mouth.
Although I have always been a cash buyer because I don't like to owe people money, most "home owners" have a loan secured on the home, a mortgage, and mortgage lenders have rules about what they will or will not lend against, based on prevailing wisdom at the time the loan is made.
For the lender, the cost of lost business if some customer can't buy a home isn't a massive concern, and most likely unless that lender is particularly stubborn and others are not, that customer would get turned away everywhere, so the effect is that homes you can't get a mortgage for are less valuable or even outright unsaleable.
So it actually doesn't matter so much what you think as seller, or what I think as buyer, the most powerful sentiment is what third party lawyers working for the lenders think. If the lender (or their lawyers) don't like your promises, too bad, you can't make that work.
Even if your "bare promise" could work, which I'm dubious about, the larger problem is that the lender's lawyers probably aren't sure it would work, which means that they won't lend on homes bought this way, which makes the "bare promise" idea useless in practice.
Maybe what wasn't clear is why homes come into it? The most common Peppercorn considerations are in Long Leases. A Long Lease might go like this, I own a plot of land somewhere, "Freehold" is the English term for this ownership. I obtain permission and I build a residential tower, with say forty dwellings inside it. That's one building, on one plot of land, but I need to sell it to forty separate buyers. Today there's a legal mechanism to do this, called Commonhold, but it's rarely used, however historically Commonhold didn't exist, so, if I own the plot of land, and the building, I would write leases for the dwellings inside the building with a long duration. Periods like 99 years, 125 years or even 999 years are often used. Then I sell those leases. As consideration the owner pays me one peppercorn per year, for the period, and I agree to let them live in my tower in exchange. This is called Leasehold ownership, for example somebody might pay £200 000 for a Long Lease on a modest two bedroom apartment in a nice area. These leases don't really (normally) "run out" because the law requires that they can be extended for a reasonable fee, so in practice they're usually permanent.
I mean, if it’s for real estate, you have to have a written document because of the statute of frauds. If you need a writing then there’s no reason not to put in some nominal consideration. I think of section 90 as the last resort, for situations that were likely not papered correctly, or at all.
This poses a problem with open source licenses. Without consideration (payment), open source licenses become bare licenses which may be revoked at any time by the grantor.
I'm unsure if 100+ year contracts should ever be valid... those involved are binding people who haven't been more and are completely insulated from the long term consequences by virtue of being dead.
The common ~ 150+ year old peppercorn leases that I've seen date back to the early days of our state capital city when then outer limits farm land was bequeathed by the 'owner'|occupying colonists on their death - some directly to their family, some to the local church, and several plots to the local city as "designated land" on a peppercorn contract.
Eg: This large park [1] is leased for a peppercorn a year to the city on the absolute proviso it be used as a park open to all otherwise the lease is terminated and the park reverts back to the estate of the bequeathing family.
Now, there's a can of worms some years and generations down the track - should the usage alter (or the peppercorns fail to be delivered to the lawyers) the grand-grand-grand children will be bunfighting over some serious now near inner city real estate.
Sure, the University of Bath, National Coastwatch Institution, and a number of the larger 'public' parks and gardens in England are on strictly limited 999 year leases.
To the best of my recollection none of those thousand year (less one) leases have run out to date.
contracts need three elements, (1) a meeting of the minds (the parties need to agree what the contract is about), (2) and exchange of consideration (including of a peppercorn), and those two are not enough, one of the party needs to act on the contract showing (3) reliance. (and contracts need to entail legal activities)
IANAL but maybe you aren't either, and the discussion of reliance that you link to does not mean the other elements of the contract don't need to also be in place unless you specifically know otherwise.
IANAL but the "doctrine of reliance" is not a doctrine on its own afaik, it's one of the three elements of a valid contract.
(IAAL, FWIW) Section 90 reliance is a separate doctrine that doesn't require consideration flowing in both directions — that's the whole point of it. I may be misremembering Contracts class (it was almost 20 years ago!), but I'm pretty sure on this one.
I have a family member who bought a house for $1 because it was about to be destroyed. He then cut the three-story house in half, got a permit to close traffic in the city for the day, and drove it on a truck to its current location, where he's lived for the past 50 years.
My Dad was a house-mover for years, back in NZ, when I was growing up. Driving trucks with houses on them around the north island, was a lot of fun as a kid!
A much more interesting UK legal concept is ‘invitation to treat’. Did you know that you can be contractually bound by things you say in adverts and that promises made in adverts can override conflicting terms of service? E.g a train company advertises a timetable and allows you to buy open return tickets which allow you to travel on any train. You rely on an advertised train but it’s delayed and you miss a connecting train to, say, a ferry. That’s a breach of contract and the train company has to put you right; put you up in a hotel until the next ferry or put you in a taxi instead of the missed connection so you don’t miss the ferry. (Both of which have been done for me by train companies). This is a pretty complicated area of contract law and where there is statutory legislation governing what you are owed, e.g EU flight compensation, this can override contract law. So definitely consult a professional lawyer when negotiating this stuff.
It's important to realize that this varies a lot between countries. The rule we're discussing is from the English common law tradition, but contracts where only one of the parties has any obligations are legal in the many countries which use the civil law system with origins in mainland Europe.
In North America, the main places where the civil law system is in use for these types of matters are the Canadian province of Quebec, the US state of Louisiana, and Mexico. Worldwide, the predominant system varies by geography, but the civil law system is actually more prevalent globally than the common law system.
This is actually a useful legal rule to know, for everyone.
An agreement isn't binding unless both sides get something. The "peppercorn" is the legal minimum, but this is still the reason, for instance, that saying "yes I promise to do X" doesn't by itself create contracts all over the place. A trade, even if it's only nominal, must take place.
Technically, you don't even have to get something yourself either. Just requiring the other party to do or not do something is enough even if it doesn't materially benefit you at all.
There, an uncle promised to pay his nephew the equivalent of $170,000 if his nephew promised to not drink, smoke, or play cards or billiards, and the court upheld the contract.
Many many years ago I bought a friend's old car for $1, saving her the trouble of junking it and giving me some semi-working wheels. I actually paid about 80 cents too much for that car, but that's neither here nor there.
This is a bit of fiction. In most jurisdictions in America, an attorney has an obligation of confidentiality to a potential client during an initial consultation. That's true even if the client or attorney decline to formalize the relationship later on. Anyway, that's the ethical rule as applied to the attorney.
The evidentiary privilege also generally applies in situations where a person is consulting with an attorney and reasonably believes the information exchanged in the consultation is confidential. So in the Breaking Bad episode, Saul didn't really need the dollar to magically "seal" the conversation and have it be treated as confidential.
Interestingly, confidentiality (returning to the ethical rule, as distinguished from the evidentiary privilege) *may* be waived by an attorney to prevent reasonably certain loss of life or substantial bodily harm. Note, the attorney *may* choose to waive confidentiality -- but is not required to!
I think in both situations, further consideration is needed because of the nature of the existing relationships. Kim and Jimmy are throughout the show at the very minimum, friends, a lot of their conversations happen as friends. You can't just claim "consultation" to privilege a conversation. The nominal fee is to distinguish this conversation from others they have.
Same thing with Saul and Walter. Up until that point, they were speaking as hostage and kidnapper. So to distinguish the change in the relationship, he takes a nominal fee. Now they are a lawyer and his clients.
Just remember, also, that common law in the area of contracts for goods has largely been replaced by the Uniform Commercial Code, which has a different way of approaching these issues.
By and large the UCC codified the common law as it developed in the context of commercial contracts, but streamlined and simplified some rules (in a few cases inverting them), especially in areas which were deemed to result in overly complex litigation with unpredictable outcomes. But irony of ironies, the irreducible complexity didn't magically disappear, so now instead of 1 problem you have 2, both of which law students are forced to wrestle with, though in the abstract the common law rules are the simpler of the two.
However, a bare promise, with no consideration flowing in the opposite direction, can still be legally enforced under the doctrine of "reliance". The details vary by state, but the basic concept is that if one party makes a promise and the other party reasonably relies on that promise to its detriment (i.e., buys raw materials to build something for the promising party), then the promise can be enforced. This doctrine is known as "promissory estoppel" or simply "section 90 reliance".
1: https://opencasebook.org/casebooks/3665-contracts/resources/...