howardmappel wrote:
Disclaimer first - I am an attorney licensed to practice in California and no where else and anything I say here should not be interpreted as legal advice to anyone. Now that I have covered my tuchas -
IMNSHO, the promissory notes are unenforceable in both the USA and GB for a number of reasons, most of which I won't discuss now because my oatmeal is getting cold and I am hungry. But the biggest reason the promissory notes will be unenforceable is that there was no valid and sufficient consideration given to the issuer of the notes, i.e., the marks, by POE. Yes, under common law (real, not SOVCIT), a peppercorn of consideration received by the party to be charged, in this case the marks, is supposed to be enough to bind the party to be charged. I would argue, firstly, that not even a peppercorn was received by the marks. The checks delivered by POE are not usable for anything other than as toilet paper or bird cage lining. Ditto with the other deliveries to be made by POE. Hardly what POE promised to deliver. The contract is not only not enforceable, it is void ab initio as not binding to begin with.
If some barrister or lawyer made the argument that yes there was a peppercorn of consideration, IMNSHO, the court would disagree and then point out that, even if there was a peppercorn, it was not sufficient consideration for a 150K pound (plus interest, etc.) promissory note.
Secondly, yes, a promise for a promise is often considered adequate consideration and may make a contract binding. But to make it enforceable, the party seeking to enforce the contract must have lived up to his contractual obligations. POE promised useful checks and other items - NOT Delivered; POE promised support to the marks - NOT Delivered; POE promised lots of things, none of which he delivered. Even if the contract was somehow originally binding, not enforceable as a result of the breaches by POE.
Thirdly, a binding and enforceable contract requires a meeting of the minds on the principal terms - that is not present here. The marks believed that POE had found a way to deliver them checks that would valid by drawing on some mystical source of payment, the RE. They never believed that POE would be able to call on the promissory note and, IIRC, POE at some point told them they need not worry about that (FRAUD IN THE INDUCEMENT BEING ANOTHER BASIS FOR NOT ENFORCEABLE). No meeting of the minds, no agreement
I am not going to discuss Fraud in the Inducement, Fraud Generally, the numerous blatant and material misrepresentations by POE, etc. because I am very hungry right now.
Howard Appel
PS: IMSOHO, there are only two ways POE collects on any of these promissory notes, he finds some sucker to buy one from him and then lets that sucker try to collect from the marks, which attempt would be unsuccessful, and he frightens a mark into paying by threatening legal action and the mark fails to consult real Bar Accreditation Registry counsel (just having a little fun with the B.A.R.). POE will never actually file a suit because not only would he lose, and then be unable to try to frighten anyone, but he would be subject to discovery, which might adduce enough evidence of criminal activity to interest a prosecution.
AND THAT WOULD BE A HAPPY DAY.
