THE EMERGENCY

When Clinical depression leads to a New Deal.
the on-going (2022) emergency
and NOw

HISTORICAL Timeline

3 MARCH 1933

Listening to HISTORICAL FACTS

Franklin Delano Roosevelt
PROCLAMATION 2039 — March 6, 1933
BANK HOLIDAY
By the President of the United States

A Proclamation

WHEREAS there have been heavy and unwarranted withdrawals of gold and currency from our banking institutions for the purpose of hoarding; and
WHEREAS continuous and increasingly extensive speculative activity abroad in foreign exchanges has resulted in severe drains on the Nation’s stocks of gold; and WHEREAS these conditions have created a national emergency; and
WHEREAS it is in the best interests of all bank depositors that a period of respite be provided with a view to preventing further hoarding of coin, bullion, or currency or speculation in foreign exchange and permitting the application of appropriate measures to protect the interests of our people;

and

WHEREAS it is provided in Section 5(b) of the Act of October 6, 1917, (40 Stat. L. 411) as amended, “That the President may investigate, regulate, or prohibit, under such rules and regulations as he may prescribe, by means of licenses or otherwise, any transactions in foreign exchange and the export, hoarding, melting, or earmarkings of gold or silver coin or bullion or currency * * *; and
WHEREAS it is provided in Section 16 of the said Act “that whoever shall willfully
violate any of the provisions of this Act or of any license, rule, or regulations issued hereunder, and whoever shall willfully violate, neglect, or refuse to comply with any order of the President issued in compliance with the provisions of this Act, shall, upon conviction, be fined not more than $10,000, or if a natural person, imprisoned for not more than ten years, or both; * * *:
NOW, THEREFORE, I, FRANKLIN D. ROOSEVELT, President of the United States of
America, in view of such national emergency and by virtue of the authority vested in me by said Act and in order to prevent the export, hoarding, or earmarking of gold or silver coin or bullion or currency, do hereby proclaim, order, direct and declare that from Monday, the sixth day of March, to Thursday, the ninth day of March, Nineteen Hundred and Thirty Three, both dates inclusive, there shall be maintained and observed by all banking institutions and all branches thereof located in the United States of America, including the territories and insular possessions, a bank holiday, and that during said period all banking transactions shall be suspended. During such holiday, excepting as hereinafter provided, no such banking institution or branch shall pay out, export, earmark, or permit the withdrawal or transfer in any manner or by any device whatsoever, of any gold or silver coin or bullion or currency or take any other action which might facilitate the hoarding thereof; nor shall any such banking institution or branch pay out deposits, make loans or discounts, deal in foreign exchange, transfer credits from the United States to any place abroad, or transact any other banking business whatsoever.

During such holiday, the Secretary of the Treasury, with the approval of the President and under such regulations as he may prescribe, is authorized and empowered (a) to permit any or all of such banking institutions to perform any or all of the usual banking functions; (b) to direct, require or permit the issuance of clearing house certificates or other evidences of claims against assets of banking institutions, and (c) to authorize and direct the creation in such banking institutions of special trust accounts for the receipt of new deposits which shall be subject to withdrawal on demand without any restrictions or limitations and shall be kept separate in cash or on deposit in Federal Reserve Banks or invested in obligations of the United States.
As used in this order the term “banking institutions” shall include all Federal Reserve banks, national banking associations, banks, trust companies, savings banks, building and loan associations, credit unions, or other corporations, partnerships, associations or persons, engaged in the business of receiving deposits, making loans, discounting business paper, or transacting any other form of banking business.
IN WITNESS WHEREOF I have hereunto set my hand and cause the seal of the United States of America to be affixed.
DONE at the City of Washington this sixth day of March -- 1 A.M., in the year of our Lord One Thousand Nine Hundred and Thirty-three, and of the Independence of the United States of America the One Hundred and Fifty-seventh.

9 MARCH 1933

THE SENATE AND CONGRESS ACCEPT THE DEAL

"The ownership of all property is in the state; individual so-called 'ownership' is only by virtue of the government, i.e., law, amounting to mere user…” Senate Document No. 43, 73rd Congress, 1st Session,

"Under the new law the money is issued to the banks in return for government obligations, bills of exchange, drafts, notes, trade acceptances, and bankers acceptances. The money will be worth 100 cents on the dollar, because it is backed by the credit of the nation. It will represent a mortgage on all the homes, and other property of all the people of the nation." Congressional Record, March 9, 1933 on HR 1491 p. 83. 

29 MARCH 1933

THE SENATE AND THE HOUSE SIGN THE CONTRACT

SPECIAL COMMITTEE ON THE TERMINATION OF THE NATIONAL EMERGENCY
93d Congress 1st Session Senate Report No. 93-549

"...Many of the members of the Roosevelt administration, including F.D.R. himself, were veterans of the economic mobilization of World War I and drew upon their experiences to combat the new situation. The first New Deal agencies, indeed, bore strong resemblance to wartime agencies and many had the term "emergency" in their titles-such as the Federal Emergency Relief Administration and the National Emergency Council.

In his first important official act, Roosevelt proclaimed a National Bank Holiday on the basis of the 1917 Trading With the Enemy Act - itself a wartime delegation of power. New Deal historian William E. Leuchtenburg writes:

          When he sent his banking bill to Congress, the House received it with much the same ardor as it had greeted Woodrow Wilson's war legislation. Speaker Rainey said the situation reminded him of the late war when "on both sides of this Chamber the great war measures suggested by the administration were supported with practical unanimity....Today we are engaged in another war,
more serious even in its character and presenting greater dangers to the Republic." After only 38 minutes debate, the House passed the administration's banking bill, sight unseen.

The Trading With the Enemy Act had, however, been specifically designed by its
originators to meet only wartime exigencies. By employing it to meet the demands of the depression, Roosevelt greatly extended the concept of "emergencies" to which expansion of executive powers might be applied. And in so doing, he established a pattern that was followed frequently: In time of crisis the President should utilize any statutory authority readily at hand, regardless of its original purposes, with the firm expectation of ex post facto congressional concurrence.

Beginning with F.D.R., then, extensive use of delegated powers exercised under an aura of crisis has become a dominant aspect of the presidency. Concomitant with this development has been a demeaning of the significance of "emergency." It became a term used to evoke public and congressional approbation, often bearing little actual relation to events. Roosevelt brain-truster, Rexford G. Tugwell, has described the manner in which Roosevelt used declarations of diferent degrees of emergency:

The "limited emergency" was a creature of Roosevelt's imagination, used to
make it seem that he was doing less than he was. He did not want to create any
more furor than was necessary. The qualifying adjective had no limiting force.
It was purely for public effect. But the finding that an emergency existed
opened a whole armory of powers to the Commander-in-Chief, far more than
Wilson had had..."

FROM THE RECORD OF:  THE SENATE REPORT
OF THE SPECIAL COMMITTEE ON THE
TERMINATION OF THE NATIONAL EMERGENCY
NOVEMBER 19, 1973 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1973
24-509 O

DECEMBER 15, 1947 

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Roosevelt and his successor, Harry S. Truman, invoked formal states of emergency to justify extensive delegations of authority during actual times of war. The Korean war, however, by the fact of its never having been officially declared a "war" as such by Congress, further diluted the concept of what constituted circumstances sufficiently critical to warrant the delegation of extraordinary authority to the President.

At the end of the Korean war, moreover, the official state of emergency was not terminated. It is not yet terminated. This may be primarily attributed to the continuance of the Cold War atmosphere which, until recent years, made the imminent threat of hostilities an accepted fact of everyday life, with "emergency" the normal state of affairs. In this, what is for all practical purposes, permanent state of emergency, Presidents have exercised numerous powers - most notably under the Trading With the Enemy Act - legitimated by that ongoing state of national emergency. Hundreds of others have lain fallow, there to be exercised at any time, requiring only an order from the President.

Besides the 1933 1 and Korean war emergencies,2 two other states of declared national emergency remain in existence. On March 23, 1970, confronted by a strike of Postal Service employees, President Nixon declared a national emergency.3 The following year, on August 15, 1971, Nixon proclaimed another emergency,1 under which he imposed stringent import controls in order to meet an international monetary crisis. Because of its general language,
however, that proclamation could serve as sufficient authority to use a substantial proportion of all the emergency statutes now on the books.

Over the course of at least the last 40 years, then, Presidents have had available an enormous - seemingly expanding and never-ending - range of emergency powers. Indeed, at their fullest extent and during the height of a crisis, these "prerogative" powers appear to be virtually unlimited, confirming Locke's perceptions. Because Congress and the public are unaware of the extent of emergency powers, there has never been any notable
congressional or public objection made to this state of affairs. Nor have the courts imposed significant limitations.

During the New Deal, the Supreme Court initially struck down much of Roosevelt's emergency economic legislation (Schecter v. United States, 295 U.S. 495). However, political pressures, a change in personnel, and presidential threats of court-packing, soon altered this course of decisions (NLRB v. Jones & Lauqhlin Steel Corp., 301 U.S. 1). Since 1987, the Court has been extremely reluctant to invalidate any congressional delegation of economic powers to the President. It appears that this will not change in the foreseeable
future.

In a significant case directly confronting the issue of wartime emergency powers,
Youngstown Sheet & Tube Co. v. Sawyer (343 U.S. 579), the Court refused to allow the President to rely upon implied constitutional powers during a crisis. The action at issue involved presidential seizure of steel plants in a manner apparently directly at odds with congressional policy, Justice Black's plurality opinion specifically acknowledges that if Congress delegates powers to the President for use during an emergency those powers are absolutely valid within constitutional restraints on Congress' own power to do so. Concurring opinions appear to agree on this point. It should be noted, therefore, that all statutes in this compilation are precisely these kinds of specific congressional delegations
of power.

The 2,000-year-old problem of how a legislative body in a democratic republic may extend extraordinary powers for use by the executive during times of great crisis and dire emergency - but do so in ways assuring both that such necessary powers will be terminated immediately when the emergency has ended and that normal processes will be resumed - has not yet been resolved in this country. Too few are aware of the existence of emergency powers and their extent, and the problem has never been squarely faced.

B - SUMMARY VIEWS OF THE PRESENT STATUS
OF EMERGENCY POWERS STATUTES

A review of the laws passed since the first state of national emergency was declared in 1933, reveals a consistent pattern of lawmaking. It is a pattern showing that the Congress, through its own actions, transferred awesome magnitudes of power to the executive ostensibly to meet the problems of governing effectively in times of great crisis. Since 1933, Congress has passed or recodified over 470 significant statutes delegating to the President powers that had been the prerogative and responsibility of the Congress since the beginning of the Republic. No charge can be sustained that the Executive branch has usurped powers belonging to the Legislative branch; on the contrary, the transfer of power has been in accord with due process of normal legislative procedures.

It is fortunate that at this time that, when the fears and tensions of the cold war are giving way to relative peace and detente is now national policy, Congress can assess the nature, quality, and effect of what has become known as emergency powers legislation. Emergency powers make up a relatively small but important body of statutes - some 470 significant provisions of law out of the total of tens of thousands that have been passed or recodified since 1933. But emergency powers laws are of such significance to civil liberties, to the operation of domestic and foreign commerce, and the general functioning of the U.S.
Government, that, in microcosm, they reflect dominant trends in the political, economic, and judicial life in the United States.

A number of conclusions can be drawn from the Special Committee's study and analysis of emergency powers laws now in effect. Congress has in most important respects, except for the final action of floor debate and the formal passage of bills, permitted the Executive branch to draft and in large measure to "make the laws." This has occurred despite the constitutional responsibility conferred on Congress by Article I Section 8 of the Constitution which states that it is Congress that "makes all Laws . . ."

Most of the statutes pertaining to emergency powers were passed in times of extreme crisis. Bills drafted in the Executive branch were sent to Congress by the President and, in the case of the most significant laws that ate on the books, were approved with only the most perfunctory committee review and virtually no consideration of their effect on civil liberties or the delicate structure of the U.S. Government of divided powers. For example, the economic measures that were passed in 1933 pursuant to the proclamation of March 5, 1933, by President Roosevelt, asserting that a state of national emergency now existed,
were enacted in the most turbulent circumstances. There was a total of only 8 hours of debate in both houses. There were no committee reports; indeed, only one copy of the bill was available an the floor.

This pattern of hasty and inadequate consideration was repeated during World War II when another group of laws with vitally significant and far reaching implications was passed. It was repeated during the Korean war and, again, in most recent memory, during the debate on the Tonkin Gulf Resolution passed on August 6, 1064.

On occasion, legislative history shows that during the limited debates that did take place, a few, but very few, objections were raised by Senators and Congressmen that expressed serious concerns about the lack of provision for congressional oversight. Their speeches raised great doubts about the wisdom of giving such open-ended authority to the President, with no practical procedural means to withdraw that authority once the time of emergency had passed.

For example, one of the very first provisions passed in 1933 was the Emergency Banking Act based upon Section 5(b) of the Trading With the Enemy Act of 1917. The provisions gave to President Roosevelt, with the full approval of the Congress, the authority to control major aspects of the economy, an authority which had formerly been reserved to the Congress. A portion of that provision, still in force, is quoted here to illustrate the kind of open-ended authority Congress has given to the President during the past 40 years:

(1) During the time of war or during any other period of national emergency
declared by the President, the President may, through any agency that he may
designate, or otherwise, and under such rules and regulations as he may
prescribe, by means of instructions, licenses, or otherwise -

(A) investigate, regulate, or prohibit, any transactions in foreign
exchange, transfers of credit or payments between, by, through, or
to any banking institution, and the importing, exporting, hoarding,
melting, or earmarking of gold or silver coin or bullion, currency or
securities, and

(B) investigate, regulate, direct and compel, nullify, void, prevent or
prohibit, any acquisition, holding, withholding, use, transfer,
withdrawal, transportation, importation or exportation of, or dealing
in, or exercising any right, power, or privilege with respect to, or
transactions involving, any property in which any foreign country
or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States; and any property or interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed be the President, in such agency or person as may be designated from time to time by the President, and upon such terms and conditions as the President may prescribe such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes; and the President shall, in the manner hereinabove provided, require any person to keep a full record of, and to furnish under oath, in the form of reports or otherwise, complete information relative to any act or transaction referred to in this subdivision either before, during, or after the completion thereof, or relative to any interest in foreign property, or relative to any property in which any foreign country or any national thereof has or has had anger interest, or as may be otherwise necessary to enforce the provisions of this subdivision, and in any case in which a report could be required, the President may, in the manner hereinabove provided, receive the production, or if necessary to the national security or defense, the seizure, of any books of account, records, contracts, letters. memoranda. or other papers, in the custody or control of such person; and the President, may, in the manner hereinabove provided, take other and further measures not inconsistent herewith for the enforcement of this subdivision.

(2) Any payment, conveyance, transfer, assignment, or delivery of property or
interest therein, made to or for the account of the United States, or as otherwise
directed, pursuant to this subdivision or any rule, regulation, instruction,
or direction issued hereunder shall to the extent thereof be a full acquittance and discharge for all purposes of the obligation of the person making the same; and no person shall be held liable in any court for or in respect to anything done or omitted in good faith in connection with the administration of, or in pursuance
of and in reliance on, this subdivision, or any rule, regulation, instruction, or
direction issued hereunder.

23 April 2025

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THE PEPPERCORN DOCTRINE:

Note, The Peppercorn Theory of Consideration and the Doctrine of Fair Exchange in Contract Law, 35 Colum. L. Rev. 1090, 1090-1091 (1935):

 "Pervading the complex field of fine-spun theories of consideration are two inconsistent ideas. On the one hand, consideration is said to be only a form; on the other, it assures a fair exchange. In substantiation of the first view and in virtually absolute negation of the second stands the age-old formula that mere inadequacy of consideration is never a bar to enforcement of a contract. Although frequently subject to evasion this general formula has gone virtually unchallenged by the courts and has met with only occasional criticism by the writers.

"Justification for this purported refusal to supervise the ethics of the market place is sought in doctrines of laissez-faire. Aside from the some- what anachronistic character of the argument in a period of rising recognition of the social interest in 'private business,' it is clear that there has been constant judicial delimitation, in the law of fraud and duress, of the permissible pressures to be used in the bargaining process. In general, the freedom from regulation postulated by laissez-faire adherents is demonstrably non-existent and virtually inconceivable. Bargaining power exists only because of government protection of the property rights bargained, and is properly subject to government control. Undaunted, the courts urge that their inability to compare values justifies the inadequacy rule. While the complexity of the exchange process renders a precise standard utopian, the total inability is belied in practice. Enforcement has been denied to contracts involving unfair disparity. Even more refined comparison is attempted by those jurisdictions which recognize 'inadequacy' as a bar to specific performance but will decree cancellation only for 'gross inadequacy.' Valid logical or practical opposition to judicial enforcement of fair exchange has thus not been offered. Further, however, the weight of the mass of pronouncements supporting the rule that inadequacy is immaterial is substantially weakened by an examination of the cases."

Requirements for Participants

Sfreddo v. Sfreddo, 59 Va.App. 471 (2012) 720 S.E.2d 145

“A gift, used here in its ordinary sense, includes not only “something that is voluntarily transferred by one person to another without compensation,” but also “a voluntary transfer of real or personal property without any consideration or without a valuable consideration.” Webster's Third New Int'l Dictionary 956 (1981) (emphasis added).

Notwithstanding the label of a sale in the corporate minutes and the existence of token consideration, a variety of factors that are particular to this transaction indelibly mark its true nature as a gift. First, the corporate minutes, signed by all three directors, reflect that when the corporation redeemed the stock of the *483 mother, it sold two hundred shares to husband and his brother not at fair market value, but at par value of one dollar per share. After the redemption of the mother's stock, husband's new shares constituted half the company.

Using the sale price of half the company from 2003 of $1.5 million dollars, divided by two hundred shares, results in an actual value of $7,500 per share. Using the valuation of the business from the time of trial results in an actual value of about eight thousand dollars per share for every dollar from husband. The vast disparity between sale price and value clearly manifests the board's intent to gift. Second, all three directors testified they understood the transaction to represent a gift. Husband testified neither he nor his brother paid anything for their shares. Rather, he testified that “my mother gave it to us.” Husband's brother also testified he never paid for his shares and had no knowledge of husband paying for the shares.

The mother testified she intended “to give my two sons” stock. Although the trial court's factual finding that husband paid a nominal sum for the shares receives deference under the circumstances of this case, it has significance that all the directors understood the transaction to represent a gift. **152 *484 Lastly, the trial court specifically found that the mother, as the sole shareholder, intended to make a gift, and the mother's testimony supported this finding. The trial court determined: “I think that Mr. Sfreddo's mother ... really thinks that she made a gift of this stock to her two sons, including Mr. Sfreddo and his brother.... I really think she believes that.”

The mother testified she regarded the transaction as a gift of her property: “I agreed to give my two sons ... two hundred shares of my stock.” The trial court's findings and the mother's testimony carry special weight concerning corporate intent in light of the mother's status as the sole shareholder and a director. Obviously, in this family held company, husband and his brother would never have received any shares without their mother's consent. We conclude, under the applicable standard of review, that the trial court was plainly wrong in failing to conclude that Triple S had donative intent in transferring the stock. We further find that intent is proven by clear and convincing evidence.

In Holloway v. Smith, 197 Va. 334, 335, 88 S.E.2d 909, 910 (1955), Holloway sued Milton Smith, Maude Smith, and Warren Ten Brook, as partners, for payment of a note purportedly executed by Ten Brook for the partnership. The Smiths denied that they were partners with Ten Brook at the time of the execution of the note because the proceeds of the note were to be Ten Brook's capital contribution to join the partnership and that, even if they were partners, Ten Brook was not authorized to bind the partnership. Id. at 338–39, 88 S.E.2d at 913. Thus, there was evidence in the record supporting their position. The trial court concluded that Ten Brook was liable on the note, but the Smiths were not. Id. at 335, 88 S.E.2d at 911. Pursuant to then Code § 50–9, partners were bound if the note was executed by a partner “for apparently carrying on in the usual way the business of the partnership.” Id. at 340, 88 S.E.2d at 914.

The Supreme *485 Court reversed the trial court and entered judgment against the Smiths. The Court wrote: When we apply the provisions of Code § 50–9 to the material and pertinent evidence relating to the making of the loan, and the execution of the note, we can reach but one conclusion, and that is, the acts of the partner, Ten Brook, bound the partnership. In reaching that conclusion, we are not unmindful of the respect which attaches to the judgment of the trial court, but when a judgment is plainly wrong or without evidence to support it, it becomes our duty to set it aside. Id. at 342, 88 S.E.2d at 915 (emphasis added); see also Walrod v. Matthews, 210 Va. 382, 391, 171 S.E.2d 180, 187 (1969); City of Va. Beach v. Roman, 201 Va. 879, 882, 114 S.E.2d 749, 751 (1960); Thalhimer Bros., Inc. v. Buckner, 194 Va. 1011, 1013, 76 S.E.2d 215, 217 (1953). In reversing the trial court, we here accept that duty.

3. Consideration

The trial court further concluded husband had paid valuable consideration for the stock and payment of consideration is inconsistent with a gift. The trial court held husband “purchased two hundred shares from the corporation for two hundred dollars.” Wife, likewise, argues that husband purchased the stock for value from Triple S. We hold any nominal sum paid by husband did not represent valuable consideration under the circumstances of this case. The Virginia Supreme Court has stated that a “gift has been defined as a contract without a consideration.” Ott v. L & J Holdings, LLC, 275 Va. 182, 188, 654 S.E.2d 902, 905 (2008). Indeed, “by definition, a deed of gift requires no consideration.” Hill v. Brooks, 253 Va. 168, 178, 482 S.E.2d 816, 823 (1997).

Consideration represents “the price bargained for *486 and paid for a promise.” Smith v. Mountjoy, 280 Va. 46, 53, 694 S.E.2d 598, 602 (2010) (citation omitted). It may come in “a benefit to the party promising or a detriment to the party to **153 whom the promise is made.” GSHH–Richmond, Inc. v. Imperial Assocs., 253 Va. 98, 101, 480 S.E.2d 482, 484 (1997) (citation omitted). We have held that there was an intent that the Triple S stock be separate property, “property acquired during the marriage by ... gift from a source other than the other party.” Code § 20–107.3(A)(1)(ii).

We repeat: a “gift” includes “a voluntary transfer of real or personal property without any consideration or without a valuable consideration.” Webster's, supra, 956 (emphasis added). We caution that while classic principles of the common law of contracts are instructive, those principles are not transmitted unaltered into the context of an equitable distribution. Thus, as here, what may constitute classic contractual “consideration” at law may not be “consideration” for the transfer of property in equitable distribution. In Gamble v. Gamble, 14 Va.App. 558, 569, 421 S.E.2d 635, 642 (1992) (quoting Sawyer v. Sawyer, 1 Va.App. 75, 78, 335 S.E.2d 277, 279 (1985)), we wrote that Code § 20–107.3 defines a structure “for equitable distribution of the marital wealth of the parties: a distribution which will equitably ‘compensate a spouse for his or her contribution to the acquisition of [all marital] property obtained during the marriage.’ ”

In Roane v. Roane, 12 Va.App. 989, 995, 407 S.E.2d 698, 701 (1991), we reversed the trial court's limitation of a wife's interest in transmuted property “in order that the legislative intent that the parties receive a fair proportion of the marital property be complied with, and to assure that the ends of justice be attained.” For example, Virginia equitable distribution law “does not establish a presumption of equal distribution of marital assets.” Watts v. Watts, 40 Va .App. 685, 702, 581 S.E.2d 224, 233 (2003) (citation omitted). While these cases deal with the division of marital property, the equitable principles therein enunciated are likewise applicable to the *487 classification of property acquired during the marriage as separate or marital. We reiterate our caveat that principles of the common law of contracts may not fully apply in equitable distribution.

That said, our decision is nonetheless supported by those common law principles. Virginia has long followed the “peppercorn” theory of consideration, under which even a peppercorn suffices as consideration. 6 See Richmond Eng'g & Mfg. Corp. v. Loth, 135 Va. 110, 156, 115 S.E. 774, 787 (1923). A peppercorn has been equated with a cent. Whitney v. Stearns, 16 Me. 394, 397 (1839).

Under this theory, “[i]t matters not to what extent the promisor is benefited or how little the promisee may give for the promise.” Sager v. Basham, 241 Va. 227, 229, 401 S.E.2d 676, 677 (1991) (citation omitted). “A very slight advantage to the one party or a trifling inconvenience to the other is generally held sufficient to support the promise.” Brewer v. First Nat'l Bank of Danville, 202 Va. 807, 815, 120 S.E.2d 273, 279 (1961). “The owner of the historic estate of ‘Blackacre’ can give it away, and he can sell it for a peppercorn. Courts, though they have long arms, cannot relieve one of the consequences of a contract merely because it was unwise.” Planters Nat'l Bank of Fredericksburg, Va. v. E. G. Heflin Co., 166 Va. 166, 173, 184 S.E. 216, 219 (1936). Nonetheless, it has been recognized that contracts containing only peppercorns as consideration may lack an authentic bargain. Professor Corbin wrote: The gross inadequacy of the consideration, as measured by the opinions of other men; may tend to support the conclusion that the parties did not actually agree upon an *488 exchange, that the “peppercorn” was not in fact bargained for by the promisor. If it was not bargained for, it was not a consideration, according to the definition that makes agreed bargain the **154 test.

Persons sometimes say that they have bargained, when their other conduct shows that they have not.... Courts must first determine the fact of bargain and agreed exchange before they can properly apply the rules of consideration as a bargained exchange. The rule that market equivalence of consideration is not required, and that the value of the consideration is to be left solely to the free bargaining process of the parties, leads in extreme cases to seeming absurdities. When the consideration is only a “peppercorn” or a “tomtit” or a worthless piece of paper, the requirement of a consideration appeared to Holmes to be as much of a mere formality as is a seal. 1 Arthur Linton Corbin, Corbin on Contracts § 127, at 546 (1963). Professor Corbin's emphasis on the fact of an actual bargain reflects one of the main concerns of contracts law. The basic elements of a contract are an offer, acceptance, and consideration. Snyder–Falkinham v. Stockburger, 249 Va. 376, 381, 457 S.E.2d 36, 39 (1995).

An offer “identifies the bargained for exchange.” Chang v. First Colonial Sav. Bank, 242 Va. 388, 392, 410 S.E.2d 928, 930 (1991). Contracts typically require a bargain to exist. Restatement (Second) of Contracts § 17 (1981). Our Supreme Court has stated that “the major consideration underlying contract law is the protection of bargained for expectations.” Filak v. George, 267 Va. 612, 618, 594 S.E.2d 610, 613 (2004). The Virginia Supreme Court acknowledged in Hackett v. Emmett, 215 Va. 726, 214 S.E.2d 139 (1975), that a sale for nominal consideration may lack a bargain and actually represent a gift. The primary issue there was whether there was sufficient corroborative evidence, pursuant to then Code § 8–286, of the delivery of an unrecorded deed, so as to pass title upon delivery. Id. at 727, 214 S.E.2d at 140.

The corroborative evidence established that the conveyance was a gift from *489 the deceased grantor Harris to Emmett. Id. The Court noted that there was a stronger presumption of delivery when there was a gift, or “voluntary conveyance,” rather than in “an ordinary case of bargain and sale,” citing a case for that proposition. Id. at 729, 214 S.E.2d at 141 (citation omitted). Apparently, the deed recited familiar language, that of bargain and sale, stating the deed was made in consideration of the sum of five dollars. Id. Yet the Court stated: “We observe that the evidence is clear that the transaction is one of gift and not bargain and sale. No consideration was involved, other than a token payment of five dollars, and Emmett testified the property was a gift to him from Harris.” Id.

As relevant to the case we here consider, we note (1) that the Hackett Court, as a condition precedent to invoking the stronger presumption of delivery arising from a gift, specifically rejected the recital in the deed that there was consideration for the transfer; (2) that the Hackett Court concluded money was in fact paid (“other than a token payment of five dollars”); and (3) that here the mother testified, necessarily unlike the deceased Harris, that the transfer was a gift. The invocation of the stronger presumption of delivery, which formed part of the standard of review, necessarily was part of the ratio decidendi, “the essential rationale in the case that determines the judgment,” and so part of the holding binding upon us. See Clinchfield Coal Co. v. Reed, 40 Va.App. 69, 73–74, 577 S.E.2d 538, 540 (2003).

The reason for our Supreme Court's holding in Hackett is that while a gift lacks consideration, Ott, 275 Va. at 188, 654 S.E.2d at 905, it has been recognized that where no bargain actually occurred as evidenced by nominal or sham consideration and the surrounding circumstances, the purported consideration is not in fact consideration, see Dulany Foods, Inc. v. Ayers, 220 Va. 502, 514, 260 S.E.2d 196, 203 (1979) (Poff, J., dissenting) (“Unless bargained for, a benefit the offeree confers upon the offeror cannot constitute consideration.”).

The Restatement (Second) of Contracts well illuminates this principle. The Restatement explains: “To constitute consideration, *490 a performance or a return promise must be bargained for.” Restatement (Second) of Contracts § 71(1) (1981). In a comment, the Restatement elucidates this by stating: “[A] mere pretense of bargain does **155 not suffice, as where there is a false recital of consideration or where the purported consideration is merely nominal. In such cases there is no consideration....” Id. cmt. b. In a comment to another section, the Restatement again explains: “Disparity in value, with or without other circumstances, sometimes indicates that the purported consideration was not in fact bargained for but was a mere formality or pretense. Such a sham or ‘nominal’ consideration does not satisfy the requirement of § 71.” Id. § 79 cmt. d. Moreover, the Restatement provides an illustration highly relevant for this case: “In consideration of one cent received, A promises to pay $600 in three yearly installments of $200 each. The one cent is merely nominal and is not consideration for A's promise.” Id. illus.

Both our Supreme Court's decision in Hackett and the Restatement (Second) of Contracts point to a long line of cases holding transactions such as the one here represent a gift. In Salmon v. Wilson, 41 Cal. 595, 604 (1871), the issue concerned whether one of a man's children took property as separate property from a gift or marital property from a bargained for sale. The court held it was a gift. Id. at 605. Regarding the supposed sale price, the court found the difference “between the price named and the value of the estate ... is so enormously large as clearly to indicate that the money consideration did not, in fact, enter into the transaction as one of its material elements.” Id. at 606. See also Oliver v. Grimball, 14 S.C. 556, 567 (1881); Wilkinson v. Sherman, 45 N.J.Eq. 413, 422–23, 18 A. 228 (1889). 7 In *491 Aldridge v. Aldridge, 202 Mo. 565, 101 S.W. 42, 43 (1907), a man purported to sell all his property to his wife and son for ten dollars. Yet the court stated: “Under the circumstances the money consideration named must be considered as nominal only ... the transaction was a gift, the element of an ordinary purchase for a valuable consideration is absent.” Id. In In re Lynch's Estate, 220 Pa. 14, 69 A. 290 (1908), a woman acquired property from her mother for one dollar.

The court held this constituted a gift, stating that “[t]o hold that a deed from a parent to a child naming a consideration of ... $1.00 impressed upon it a grant of bargain and sale would be contrary to the popular understanding of the effect of such a conveyance, and would in every case defeat the manifest intention.” Id. at 292.

More recently, in Green v. Green, 542 So.2d 466, 467 (Fla.Dist.Ct.App.1989), the court held a husband's payment of nominal consideration did not alter the effect of a gift of an interest in a residence. Although the wife argued the nominal consideration made the asset marital property from a sale, the court disagreed and held: “[T]he payment of trivial or merely nominal consideration does not alter the obvious nature of the transaction. These transfers were gifts....” Id.See also Scott v. Scott, 86 Ark.App. 120, 161 S.W.3d 307, 311–12 (2004). **156 *492

We hold that where nominal consideration and the surrounding circumstances of a contract demonstrate a gift rather than a bargained for sale occurred, the court should find the transaction constitutes a gift. 10 The party seeking to show a gift has the burden of proof by clear and convincing evidence. Prizzia v. Prizzia, 58 Va.App. 137, 163, 707 S.E.2d 461, 473 (2011). However, we emphasize this does not protect imprudent persons from poorly made bargains, for even a peppercorn that is bargained for may constitute consideration. In this case, the evidence plainly demonstrates a gift from the company to husband.

The corporate minutes from the meeting in 2004 where the company agreed to transfer two hundred shares to husband reflect that husband paid one dollar per share, for a total of two hundred dollars. Since the company simultaneously agreed to redeem the mother's shares, husband's new stock represented half the company. As noted above, employing the sale price of half the company from 2003 of $1.5 million dollars, divided by two hundred shares, produces an actual value of $7,500 per share. If the valuation of the business from the time of trial is used, the stock had an actual value of about eight thousand dollars per share. We have already found the board of directors, including the sole shareholder mother, regarded the transaction as a gift.

Obviously, no bargained for exchange occurred. The nominal price paid by husband did not change this transaction from a gift into a sale. *493 Since no valuable consideration existed and the company intended to make a gift to husband, the two hundred shares he received represented his separate property from a gift under our equitable distribution statute. 11 See Code § 20–107.3(A)(1). This decision makes it unnecessary for us to consider husband's second assignment of error, which addresses the trial court's decision regarding the share of the company wife should receive if the stock is marital. B. Valuation of APS Investments Husband contends the trial court erred in determining the value of his stock in APS Investments for two reasons.

First, he argues it was inappropriate to place a value on APS in the absence of business valuation evidence such as an appraisal or capitalization rates. Second, husband argues the trial court should have considered evidence of a debt APS owed to husband's brother. We find no error regarding the first issue and hold the second not properly before us. “In Virginia, the courts look to the intrinsic value of the property to the parties to measure value for equitable distribution purposes.” Hoebelheinrich v. Hoebelheinrich, 43 Va.App. 543, 550, 600 S.E.2d 152, 155 (2004). Since “intrinsic value must depend on the facts of the case, we give great weight to the findings of the trial court.” Howell v. Howell, 31 Va.App. 332, 339, 523 S.E.2d 514, 518 (2000).

This Court will “affirm if the evidence supports the findings and if the trial court finds a reasonable evaluation based on proven methodology and on the application of it to the particular facts of the case.” Id. “The intrinsic value principle applies to stock in a family owned company.” Owens v. Owens, 41 Va.App. 844, 854, 589 S.E.2d 488, 494 (2003).

We find the trial court properly valued APS Investments. The evidence before the trial court was that APS owned a single piece of property and nothing else besides a bank *494 account. Under these circumstances, the trial court acted within its discretion in holding the value of the property and the bank account constituted the value of APS. The majority of husband's argument under this assignment of error relates to the **157 failure to reduce the value of APS by the debt to husband's brother. Yet husband cites no authority concerning this.

In fact, the only authorities cited under this assignment of error are two cases after the first sentence, which states: “Valuation cannot be based on mere guesswork.” In light of the trial court's holding that the value of APS was simply the value of the property and the bank account, which we affirm, we do not perceive how consideration of the debt would require guesswork. Furthermore, nothing in this citation addresses wife's argument that husband failed to prove the liability of APS. Husband's reply brief cites no authority of any kind for this assignment of error.

Rule 5A:20(e) directed that husband's brief contain the “standard of review and the argument (including principles of law and authorities) relating to each assignment of error.” Based on this rule, we have repeatedly stated how undeveloped arguments “do not merit appellate consideration.” Reid v. Commonwealth, 57 Va.App. 42, 48, 698 S.E.2d 269, 271 (2010) (citation omitted). In Fadness v. Fadness, 52 Va.App. 833, 851, 667 S.E.2d 857, 866 (2008), this Court held: “If the parties believed that the circuit court erred, it was their duty to present that error to us with legal authority to support their contention.” Where a party's failure to present authority is significant, we may treat an assignment of error as waived. Parks v. Parks, 52 Va.App. 663, 664, 666 S.E.2d 547, 548 (2008). While we may speculate as to how husband's meager authority relates to his argument, the need for such guesswork on our part necessarily means husband has not complied with the rule. We hold husband's failure to present authority significant and treat this portion of his assignment of error as waived. *495 C.

Interest Income Husband maintains the trial court erred in failing to consider the interest income that wife could gain from the monetary award. Husband contends that consideration of this income should result in a diminished spousal support award. Since we reverse the trial court's equitable distribution finding concerning the gift of Triple S stock, we reverse and remand this issue for further consideration. Code § 20–107.1(E)(8) requires that in awarding spousal support, the trial court shall consider the “provisions made with regard to the marital property under § 20–107.3.” “Because the trial court cannot decide the issues pertaining to permanent spousal support until the equitable distribution issue is resolved, we reverse and remand the trial court's award of spousal support.” Duva v. Duva, 55 Va.App. 286, 301, 685 S.E.2d 842, 849 (2009). D. Attorney Fees Both parties seek an award of attorney fees for costs on appeal. As both parties have partially prevailed, we deny any award of fees. See Smith v. Smith, 43 Va.App. 279, 291 n. 6, 597 S.E.2d 250, 256 n. 6 (2004).

IV. CONCLUSION

The trial court erred in holding husband's acquisition of half the stock of Triple S was not a gift. The trial court acted properly in determining the value of APS Investments. We remand on the issue of whether the trial court erred in determining spousal support by not considering interest wife may receive from the monetary award in light of our reversal concerning the status of Triple S stock. For the foregoing reasons, the judgment of the trial court is affirmed in part and reversed and remanded in part for further proceedings consistent with this opinion. Affirmed in part, reversed and remanded in part.
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