Filter Coffee # 283

On Ad Idem

Bengaluru

Pavitra Ullal’s comments prompted Amar Chintopanth to make these observations:

“Prasanna, reading about the birthdate of Christ mentioned in FC, I would like to share some trivia. New Year around the world seems to have historical significance and not religious as is made out to be many a time. I often used to wonder why Maharashtra, Karnataka and Andhra Pradesh have the same day as New Years Day. I read that a ruler, Gautama of the Shalivahana dynasty, ruled over the regions currently covering the above three states over 2000 years ago. In order to celebrate a major victory, he started a new calendar year in 78 AD, and the year was called Shalivahana Shake. That is why even today, the Shalivahana shake, which we use in the above states, is 78 years different from the Gregorian calendar. We are now in Shalivahana shake 1948. This is completely different from the Samvat year, etc. Conversely, when I had visited a satellite company, Thaicom in Thailand, I was intrigued when they mentioned that they launched a satellite in the year 2520, when actually it was 2020. They explained that their year starts with the year of birth of the Buddha, which is 500 BC.”

[Amar, I gather the Hindu New Year 2026 begins in March with Vikram Samvat 2083, which is 57 years ahead of the Gregorian.]

FC 282 on ‘lame excuse’ provoked Chirag Balyan to make this comment:

“Interesting read. Would love to explore Wayanad. My learning from this: 1. The phrase ‘lame excuse’ should be avoided because the word ‘lame’ has disability-related origins, and using it this way can reinforce stereotypes, normalise harmful labelling, and contribute to discrimination against persons with disabilities. 2. Alternatives could be a weak excuse, a hollow excuse, a dubious excuse, a flimsy excuse, etc. One question which came to my mind: can synonyms be thought of based on the ‘nature of a thing’ rather than ‘meaning of it’? Alibi’s nature/effect is an excuse, but its meaning is elsewhere.”

Readers may have a view on what Chirag says. Speaking for myself, avoiding the use of ‘lame excuse’ may be challenging, as the protagonists might disagree and argue that ‘blind belief’ cannot be derogatory, as it represents the unquestioning acceptance of something, but would agree that using the phrase ‘lame duck’ to describe the disabled can be outrageous. Happy to hear from others on Chirag’s thought-provoking view.

There were other comments too, on FC 282:

• Lakshmi Raman: “FC never fails to interest me, and I eagerly await Sundays to read it alongside my cup of tea. I admire your discipline in bringing out this edition of FC when the excuse (whether lame or plausible or valid) would have been taken in good faith by your fans.”

• A G Desai: “When I was in a hostel as a student, most of us were from the rural lower middle class. Though hard work in study was essential to rise above, if a power cut had not occurred, I would have studied well, and so, I am not at fault. Is this excuse real or lame? I am still wondering.”
  [AGD: Knowing how hardworking you were always, I assume you are echoing the sentiments of someone who missed the bus 🙂]

🤝 Ad Idem

Variety is the spice of life, as the saying goes. In 1785, William Cowper wrote a poem entitled “The Task,” and it included the line: “Variety is the spice of life, which gives it all its flavor.” So are differing viewpoints, which make discourse interesting. If people towed the same line, it would sound sycophantic, and it would be like eating cheese on toast every day. What you eat and what you say to people are both variety-driven. There are times, though, when consensus helps deal with a situation.
For example, if you are sharing a meal with someone, and you both agree on an item on the menu. But it is not that easy if you expect someone to agree with your view or with what you think or suggest.

Without meaning to bore you with legal terminology, I would like to briefly write about the concept of ‘Ad Idem’, which will then have relevance to what I wish to share with you.

Ad Idem is a Latin phrase which translates to ‘of the same mind’. In legal parlance, ad idem means that both parties to a contract are on the same page and share the same understanding of the terms. But in real life, evolving a consensus is easier said than done, particularly when the discussion and the intended agreement are about a transaction and its terms and conditions. It gets complicated if one of the parties is in a dominant position.

‘Ad idem’ is a fundamental end objective of all negotiations to ensure that all parties involved in an agreement are aligned in their expectations and obligations to ensure the smooth execution of any contract, foreseeing the possible disputes that could arise if parties and their interests are not aligned. Another Latin phrase, ‘quid pro quo’ (something for something), underpins the mutuality of give & take that helps parties get on the same page.

Getting two or more people on the same page can be quite daunting if there is no shared interest or common intent. A family of four, wife, husband, a teenage son and a teenage daughter are contemplating an outing. The husband and wife, after some discussion, are aligned on the destination & the budget. (I suspect the husband agreed with his wife 🙂) The teenagers believe the destination is not meant for youngsters but for ‘seniors’ who sit and watch the same TV but in a different room. They would like to go to a happening place where there are adventure sports and where youngsters hang out. Eventually, they get on the same page and agree to spend a couple of days in a quiet hill station and then move to a seaside resort. The budget gets tweaked upwards, though. A small price for the family to be on the same page.

Living in a joint family can be quite daunting when it comes to evolving a consensus. Not that it is easy if the family has gone nuclear. A Hindu joint family is considered an enduring social institution, providing a solid foundation for preserving cultural and family values, promoting economic stability, and sharing resources and duties. But the competing tensions in a joint family make it difficult to get everyone on the same page. There were days in the past when the fiat of the patriarch or the matriarch ruled the roost and was accepted with muted displeasure.

A client asked me, rather innocently, if he should obtain consensus among the likely inheritors before writing his Will. He thought such a consensus might preempt challenges to the Will, but I advised him not to attempt at evolving a consensus. Will is an expression of the ‘will & wish’ of the maker (called the testator), and getting all the likely beneficiaries on the same page can only cause a lot of heartburn to the testator and the beneficiaries as well. There are stories of manipulated Wills and of vengeful Wills disinheriting a logical legal heir. A Will, being a unilateral declaration, is hardly a matter for ad idem.

Bargaining is a process that aids agreement, but an agreement founded on an unconscionable bargain can hardly be called ad idem. For instance, in an arranged match, the boy agrees to marry a girl in return for a hefty dowry. The father of the bride disapproves and regrets having to pay a price for getting the daughter married, and the daughter agonises over her father’s vulnerability. The wedding takes place, and everyone pretends to be on the same page.

Deceit is the underlying intent of an agreement founded on false promises. Some people persuade you to agree, only to desert you after having made an unfair gain. Entering into a partnership can be a very risky proposition. A hurried approach is fraught with pitfalls, and over-dependence on a partner will most likely put you at a disadvantage over time. As a lawyer, I have come across a number of instances where one partner has breached the trust of the other and has left them scarred both emotionally and financially. I have heard clients lamenting and regretting getting into a partnership. And in one case, I was shocked to hear one of the clients say that there was no formal documentation and that the partnership was based on trust!

The problem lies in the blind belief that nothing will go wrong and there’s no need to engage in hard negotiation before inking the deal among partners.

It serves well to remember what John F. Kennedy said: “Let us never negotiate out of fear, but let us never fear to negotiate”. It augurs well to negotiate frankly and openly, and not agree for fear of offending someone or betraying mistrust. Experience has shown that doing business with friends and relatives is fraught with emotion, tension, apprehension, compunction and any other ‘shun’ you can think of. Ha! That leads one to believe that it is better to shun doing business with friends and relatives unless one has the gumption to manage that hybrid relationship.

Business is inherently transactional in nature. Transactions can conclude cordially if there is clarity of thought and expression. Otherwise, things go awry, and bitterness permeates that relationship. If the business is one of enduring nature designed to operate over a foreseeable long period, it has to be structured well, documented precisely and have all contingencies provided for in the contract. Disagreements in short-term contracts are far more manageable than those that appear in long term contracts. This is where the Kennedy principle ‘never fear to negotiate’ plays out and ensures all parties are on the same page after much discussion.

When people are in a transactional mode, it is easy to be open and frank and let our personal feelings & obligations inhibit our ability to be firm and resolute. Like when your friend wants to buy your apartment or car, you can be as firm as you will be with a third party. If price discovery has been made, it makes it easy to negotiate. Avoid saying, “The market price is X, but since you are my friend, you can pay me some percentage less.” Let the request come from the buyer, and that keeps the initiative with you.

Dear Readers, being on the same page is easier said than done, even in day-to-day dealings. A certain amount of give & take in equal measure can put an agreement on an even keel. The topic is such that one can cite as many examples as one might want, but I need to stop here and make sure you are on the same FC page and not drop off cursing the legal mumbo jumbo.

A pun before I sign off: Even though we may disagree with each other, here’s something we can hopefully agree on: People who are reading this are on the same page.

See you next week, take care, be safe. Ciao!