A bids out of turn. Y and Z consult as to whether they shall allow the
declaration to stand or demand a new deal. B claims that, by reason of
the consultation, the right to enforce a penalty is lost.
Rule 49 does not prohibit consultation. It provides that "either
adversary may demand a new deal or allow the declaration to stand."
This obviously only means that the decision first made by either shall
be final. The old law prohibiting consultation has been stricken from
the code, and the action seems wise, as such a question as, "Will you
enforce the penalty, or shall I?" is really a consultation, and
consequently an evasion of the law.
There does not seem to be any sound reason for preventing partners
entitled to a penalty or choice of penalties from consulting, and as
the laws at present stand, there is unquestionably nothing prohibiting
B's claim, therefore, is not allowed.
Next: Case 2
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