To the Editor:

Kate Stith-Cabranes bases her argument in "No Contract" in large part on the lack of the parties' ability to contract, and in the lack of a consideration. I'm not an attorney myself, but I've been living with one under a marital arrangement for 20 years, and I had a helpful e-mail from another in the course of discussing Ms. Stith-Cabranes's piece yesterday.

She says, "The law confirms the absence of a "contract" in the 1891 resolution. First, the Association of Alumni is an unincorporated association without capacity to contract. See Shortlidge v. Gutoski, 125 N.H. 510 (1984)." A Google search makes it plain that unincorporated associations are fully able to contract, under state laws and in common law. In fact, an unincorporated association is a form of implied contract. A partnership is also a form of unincorporated association. There are potential problems in belonging to such an unincorporated association, but inability to contract is simply not one of them.

An attorney sent me a PDF of the [Editor's note: Now available online] Shortlidge v. Gutoski, 125 N.H. 510 (1984) case Ms. Stith-Cabranes references. This is short and easy to read, even for a lay person, and it's very puzzling in that the case makes no reference to any supposed inability of unincorporated associations to contract. The case covers the well-known problem of members' liability in an unincorporated association for the association's debts (which of course implies the ability of said association to enter into contracts). This is a separate legal issue and makes no implication as to the ability of unincorporated associations to contract.

The attorney who sent me the PDF said, "I am a lawyer and believe that the term 'See,' as used by the Yale professor, should be interpreted as meaning that the cited case 'clearly supports' the proposition." However, it clearly does not. The citation, as far as I can see, and apparently in the opinion of the attorney who took the trouble to look it up, is misleading and implies a support for her position which does not exist. Since lay people wouldn't have access to the case and many attorneys wouldn't take the trouble, I find this, frankly, mendacious. If the Board loyalists have to resort to this kind of deception to make their case, then their case must be weak indeed.

I'm reminded, in fact, of Ward Churchill [!], who was dismissed from a tenured faculty post for, among other things, citing sources that did not in fact support his claimed position. I'm disappointed that a Dartmouth alumna, a Yale professor, and a former Dartmouth trustee would engage in this sort of scholarly deception. Perhaps Ms. Stith-Cabranes can illuminate the situation here better than she has.

Ms. Stith-Cabranes also wonders where the "consideration" is in the contract, but she seems focused on something concrete, perhaps like a sum of money. I double-checked with my attorney wife, who tells me that an intangible consideration happens all the time. The Board in 1891 got a consideration in having the Association of Alumni stop pestering it and say it was happy. It got a consideration in being told it was doing the right thing. The same would apply to an implied contract between neighbors in mitigating some problem like an overgrown tree. The one has the consideration of seeing the neighbor's complaints stop; the other sees the tree trimmed.

If a lay person sees such problems in an argument advanced by someone like Ms. Stith-Cabranes, finding confirmation in the opinions of attorneys, I'm wondering what sort of legal advice the Board of Trustees is getting in this case. I suppose we'll find out soon enough.

--John Bruce '69

TDI Responds:

In the opinion Professor Stith-Cabranes cited (available now on our website for our readers' all-important pleasure) the following sentence amply supports her proposition that unincorporated associations are not generally capable of entering into contracts in New Hampshire:

Although the defendant may have believed that he was acting solely as an agent for a disclosed principal, the Winchester Taxpayers Association, when entering into the employment contract with the plaintiff, the principal for which he acted was in actuality not a legal entity having the power to contract.

Furthermore Mr. Bruce's contention that Professor Stith-Cabranes does not allow for "intangible" consideration falls flat, since she did not assert that consideration could not be "intangible," only that it had to be definite enough for the parties and courts to know what was promised.

The copy of the opinion bolds the key language (courtesy Professor Stith-Cabranes) relating to the issue of whether the Association of Alumni has capacity to enter into a contract. It also italicizes (at the end of the opinion) the Court's effort, in the interest of fairness, to allow the defendant to join the other (assenting) members of the association to bear part of the liability--this however is unrelated to any problem Mr. Bruce raises.