Thursday, April 25, 2013


There is some confusion about whether this subsection begins, “A corporation shall have power to indemnify ...” or “A corporation may indemnify ...”. As originally enacted, § 145(a) contained the phrase “shall have power”. 56 Del. Laws 50, § 1 at 170 (1967). According to the annotations in the Delaware Code Annotated (and confirmed by a review of the legislative records since 1967), § 145(a) has never been amended. See 8 Del.Code Ann. tit. 8, § 145(a) (1991 & 1995 Supp.).

Nevertheless, the Delaware Code Annotated, a private compilation by the Michie Company of all Delaware legislative acts, at some point began using the phrase “may” in place of “shall have power”. See 8 Del.Code Ann. tit. 8, § 145(a) (1974). We have not been able to explain this non-legislative change in statutory language. The Delaware Corporation Law Annotated, published by the Corporation Trust Company, continues to use the phrase “shall have power”. Del. Corp. L. Ann. § 145(a) (20th ed. Corp.Trust.Co.1991).

One treatise uses the phrase “shall have power”, see Ernest L. Folk, III, et al., Folk on the Delaware General Corporation Law at 145:1 (3d ed.1994), while another uses “may”. See 5 R. Franklin Balotti & Jesse A. Finkelstein, The Delaware Law of Corporations and Business Organizations at 100 (1990 & 1993 Supp.) (“Balotti & Finkelstein”). The parties to this appeal perpetuate the confusion: their joint appendix contains a version of § 145(a) that says “shall have power”, but one of the briefs quotes a version that says “may”.

When there is a conflict between an original enactment of the Delaware Legislature and the codification of the law, the original enactment controls. Elliott v. Blue Cross & Blue Shield, 407 A.2d 524, 528 (Del.1979); Kimmey v. Farmers Bank, 373 A.2d 569, 570 (Del.1977). We therefore employ the Legislature's version of § 145(a), which says “shall have power”.
Waltuch v. Conticommodity Servs., Inc., 88 F.3d 87, 90 n.6 (2d Cir. 1996) (discussing what 8 Del.Code § 145(a) actually says).

Wednesday, April 17, 2013

"Bargain and Sell"

One invariably sees the phrase "A bargains and sells to B" in deeds. Equally invariably, nobody handling such a deed can explain why the deed says "bargain and sell." Because they do not understand the words, having never bothered to learn the nature, purpose, or origin of their presence, people simply assume they are superfluous. It is fashionable in many circles to deride such phrasings as merely an abundance of surplusage.

Au contraire. The Georgia Supreme Court explains:
Blackstone says of the deed of bargain and sale, that it “is a kind of real contract, whereby the bargainor, for some pecuniary consideration, bargains and sells, that is, contracts to convey, the land to the bargainee, and becomes by such a bargain, a trustee for, or seized to the use of, the bargainee: and then the statute of uses completes the purchase; or, as it hath been well expressed, the bargain first vests the use, and then the statute vests the possession.” (2 Black. Com. 338.) So, Cruise says; “The proper and technical words of this conveyance, are, “bargain and sell;” but any other words that would have been sufficient to raise a use upon a valuable consideration, before the statute, are now sufficient to constitute a good bargain and sale.”

Dudley’s Lessee v. Bradshaw, 29 Ga. 17, 22–23 (1859). 

Thus, the contract for the sale of land was the bargain, which created (as it still does) an equitable title in the purchasor. The sale was the legal result, created by the Statute of Uses (27 Hen. VIII c. 10), that followed, of the legal title vesting in the purchasor as a result of the bargain. So the words are not surplusage: they describe the conveyance of two different rights, distinguishing a deed from a trust instrument. Once again, our ancestors prove that they were more intelligent than we like to believe.


Monday, April 1, 2013

The Vatican Press Office Must Be Abolished

The embarrassing and confusing spectacle of Fr. Frederico Lombardi, S.J., tottering out and issuing bizarre statements about the nature of Church teaching and Canon Law simply must come to an end. What purpose is served by manufacturing mountains of vacuous papers stamped by a Vatican office? Surely the answer is "none whatsoever."

The two Vatican Councils speak at substantial length, if not with astonishing pellucidity, on the various forms in which the Church's Magisterium acts. "Press conferences by Jesuits" are not on the list. The Church has laws. She has liturgical texts. She has papal decrees, encyclicals, dogmatic constitutions, and various concilar documents. She does not need press releases. Publish a schedule of Mass and confession times, a number to call to schedule a baptism, and be done with it. If someone wants to know what the Church says on further matters, let him look to where the Church has already spoken. All the present state of affairs does is make bad situations worse.