Читать книгу The Law of Fundraising - Bruce R. Hopkins - Страница 50

A few charitable solicitation acts include a definition of the term sale (or sell or sold). A statute may provide that a sale means the transfer of any property or the rendition of any service to any person in exchange for consideration. This may be said to include any purported contribution without which the property would not have been transferred or the services would not have been rendered.

The term consideration is the critical element of this definition, inasmuch as it represents the principal dividing line between a sale and a contribution.¹⁶ Consideration is the core component of a bona fide contract: both parties to the bargain must receive approximately equal value in exchange for the participation of the other. Consideration is the reason one person enters into a contract with another; the contracting party is motivated or impelled by the benefit to be derived from the contract (for goods or services), while the compensation to be received by the other contracting person is that person's inducement to the contract. A transaction that is not supported by adequate consideration cannot be a sale.

Likewise, a transaction that is completely supported by consideration cannot be a gift. Some transactions partake of both elements, where the consideration is less than the amount transferred, in which case only the portion in excess of the consideration is a gift. The two most common types of these dual character transactions are the quid pro quo contribution¹⁷ and the bargain sale.¹⁸

In those states that define a commercial coventure as a charitable sales promotion,¹⁹ the term sale usually is defined in that setting.