Court discussions about secondary restrictions date back at least to the 19th century and probably earlier, and they are also a common feature of recent financial scandals, Cohen said. “There is at least some anecdotal and circumstantial evidence that ancillary agreements are a fairly important phenomenon put into play by quite demanding people, where there is a lot of money at stake,” he said. “Ancillary restrictions used for fraudulent purposes generally involve some kind of omission that conceals the incidental agreement, rather than commissions – that is, affirmative misrepresentation.” Accessory agreements effectively co-opt the other party (Merrill Lynch in Enron`s example) so that they do not whistle the agreement. Using the contract as property also makes property easier to hide than material property, he said. Other laws also apply to ancillary agreements, Cohen noted. For example, ancillary agreements may themselves be evidence of securities fraud. Secondary parties such as Merrill Lynch could be subject to aid and assistance laws, which can be both a crime and a civil injustice, while private actions for damages for aid and assistance in securities fraud are no longer permitted. The rule of proof of contract law renders ancillary agreements unenforceable in many circumstances, but focuses doctrinally on whether the main agreement is sufficiently complete or whether the ancillary agreement is contrary to the main agreement. Under an exception to the Parol rule of law, where a party has introduced evidence that the main agreement was a fictitious agreement, evidence of ancillary agreements may be considered. “The focus is on the wrong person… In many of these cases, the evidence of the ancillary agreement is very credible because it is the real deal, but the problem is that it is fraud, and the law should sanction fraud [by authorizing the application of the subsidiary agreement]? Cohen said.
“The most worrying thing, at least in my view, is that the courts are almost completely unaware of the effects of enforcement or non-application on the interests of third parties.” As far as form is concerned, in most cases a letter is based on the consensual.