[blml] 40B3, etc.

[Eric Landau]

On Mar 19, 2008, at 8:02 PM, Stefanie Rohan wrote:

> From: "Eric Landau"
>
>> The point, of course, is that even if you make no explicit agreements
>> about RCs after specific IBs, you may be forced by circumstance to
>> develop implicit agreements over time.  The Law can't ban you from
>> doing something that you cannot avoid doing.  And since the Law makes
>> it clear that implicit agreements are to be treated no differently
>> than explicit ones, if you can't ban the former in a particular
>> circumstance you can't ban the latter either.
>
> Indeed so. But it is not even implicit agreements developed over time,
> really. In the example you gave, the meanings of the various RCs were
> work-out-able at the table. Just by reflecting why partner chose  
> one RC and
> not another, you will have at least some information not contained  
> in the RC
> itself.

Exactly.  Although, unlike Stefanie, I don't see this as a problem  
per se.

> This is a very very bad idea. I think that one legal RC, as in the  
> past, is
> the only way to avoid this, and is the way, er, "forward".

Problems arise only when (and because) a meaning which is "work-out- 
able out the table" transforms itself -- as it inevitably must, given  
time -- into one which is "worked out at the table", thus creating an  
"implicit agreement", which the Law insists on treating identically  
to any other partnership agreement.  What is needed is a legal  
distinction between true agreements, which create meaning, and  
implicit pseudo-agreements, which are merely confirmations of "work- 
out-able at the table" meanings.  The latter, albeit properly subject  
to the disclosure rules on the same basis as any other understanding,  
cannot be treated as "special partnership understandings" for the  
purpose of applying L40 without causing the sorts of problem we see  
here.

In the paragraph following the one Stefanie cites above I wrote,  
'This is one of several circumstances in which the Law would be well  
served if it recognized a clear distinction between meanings of calls  
that can be derived from a partnership's fundamental systemic  
principles and general "bridge logic" and meanings that depend on  
specific partnership agreement -- whether or not the former has been  
previously revealed at the table.'


Eric Landau
1107 Dale Drive
Silver Spring MD 20910
ehaa at starpower.net