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The Unwritten Code

Open Robins,

To begin, I am not a lawyer, but I have a lot of practical experience in
fairness, ethics and moral conduct in dealing with people in many
situations. I write the following as a personal opinion which I think
will pass the test of logic, legality and common sense. If I am wrong,
please let me know. I value the opinions of others when it is sound. If
I am right but have expressed views incompletely, please let me know
this also.

In the world of horticultural commerce there are written contracts,
there are orders, there are invoices, there are spoken agreements, there
are handshakes and there are promises....all based on exchange of money
for things. Business is usually conducted in an atmosphere of
confidence, of goodwill and faith that the quality of the product
involved is equal to the price and that the purchaser's credit and check
are both good.

In the world of  hosta gardeners, hobbyists and hybridizers, there are
exchanges likewize based on confidences and specific conditions. These
exchanges do not involve money or written documents but they may involve
values and agreements. I give you a plant , for example. You give me
your friendship that may last a lifetime. No money changes hands. No
contracts are signed, no invoices are submitted. Notes are kept perhaps
because memories often fail. Oftentimes,  certain understandings  and
unwritten conditions accompany the plant. These are accepted as part of
the exchange of the plant and the friendship. Sometimes it is spoken or
perhaps even written. Sometimes it goes like this:

   " In giving this plant to you, I prefer, in fact,  we understand that
you will not allow this plant
     to leave your garden and enter into the commercial horticultural
trade. If there is money to be
     made, it is I who will benefit from its sale to recover costs of
its development"

Both giver and recipient understand that the plant is intended for the
enjoyment and use of the recipient in his garden. He may use the
germplasm and may develop other plants from it (through hybridization or
from sports) which are not subject to conditions agreed upon,  but he is
not to enter  into commerce of the original plant without the permission
of the original owner.

Is this so unreasonable a  condition to accompany a gift plant...or even
a plant being traded for another of equal value? In my opinion, if
conditions are agreed upon, this agreement is as valid as any business
agreement. Often both parties are equally obligated to abide by similar
agreements. It is a matter of understanding and good faith agreed to by

This unwitten code which accompanies the gift of a hosta to a hosta
friend continues throughout life or until circumstances change which
would affect the unwritten agreement. Changes in marriage status,
illnesses, sale of property, changes in jobs or residences, death or the
end of the friendship can affect the agreement. The status of the
original agreement may be altered in ways to invalidate the original
unwritten agreement and ownership of the plant in question. If new
possessors of the plant material are not in agreement with conditions
associated with the original gift ( for example, not abiding by the
original prohibition regarding its entry into the horticultural trade) ,
it seems to me that the original owner  has a claim for return of his
gift plant material to prevent such use.

I know of no such case in which such conditions change to such a degree,
that problems have arisen...but I can conceive of situations where this
might occur....where gifts intended for one use may  actually end up in
another  use. Let us hope and manage our gifts or exchanges of the
Friendship Plant in ways that it will not become the subject of discord,
greed and acrimony between friends and associates..........and even
their heirs.

Please help improve upon this description of an unwritten code of
agreement of use of gift plants. What have I forgotten? Or included,
that is incorrect???

Jim Hawes

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