[Foundation-l] Future board meeting (5-7 april 08)

[Dan Rosenthal]

And yet, a contract is a pledge of sorts, but its enforceability is  
supported by law.  However, to gain that enforceability, the contract  
must be sufficiently certain. Given that the key focus of that non- 
disparagement agreement is "disparagement", it would seem critical  
that disparagement be defined. And yet, it's not. It's suitably vague.  
That's hurting the value of what a pledge is: a promise that something  
will (or will not) happen. If that act or omission is not actually  
defined (such as in this case, with disparagement being the act), then  
you simply cannot make that kind of promise. On top of that, for a  
promise like this to be worthwhile, it must be equitably applied to  
members of the group (i.e. all members of the board, or all members of  
the staff, or all of both). Picking and choosing who falls underneath  
the pledge/contract diminishes its value by allowing loopholes. For  
instance, suppose all the staff and board signed this agreement, and  
one member (board or staff, doesn't matter) leaves disgruntled. Under  
the text of that agreement, that member does not have any assurances  
that an independent contractor for the foundation won't slam them  
(since said people wouldn't be covered under the agreement). Given  
this discrepancy, it's feasible to see a situation where this  
agreement as written works far more to the benefit of the foundation  
than to the benefit of an employee/trustee who leaves. And that's not  
a good thing.

-Dan
On Apr 14, 2008, at 1:43 PM, Brion Vibber wrote:

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> Florence Devouard wrote:
>> Last, you mention adulthood. Would not it be more "adult" precisely  
>> to
>> pledge to respect others and their activity, to pledge to always  
>> try to
>> have our mission in mind, to follow common values shared by the  
>> group;
>> to respect a code of conduct and promise to inform in conflict of
>> interests you might be submitted to;
>> as opposed to be maintained under a legal threat ?
>
> In a civilized society, the legal system is where we go to resolve our
> disputes when we find we *couldn't* work them out amicably in person
> like we would prefer to.
>
> Contracts are a formal way to make agreements -- pledges -- written
> down, so that *if* a dispute occurs in the future, we can all sit down
> and point at the agreement, reason about it, and if it ends up needing
> to be decided with assistance from the law, the judge will have a  
> chance
> of figuring out what it is the parties agreed to.
>
> Being an adult is about responsibility, and that means planning for
> contingencies.
>
> That's why we put our money in banks instead of under the mattress,  
> why
> we get health insurance instead of hiding from the doctor, and why we
> write down contracts instead of making all agreements under the table.
>
> - -- brion
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