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Where a party undertakes to pay, upon a special contract for the performance of labour, he is not liable to be charged upon such special contract, until the money is earned according to the terms of the agreement; and where the parties have made an express contract, the law will not imply and raise a contract different from that which the parties have entered into, except upon some farther transaction between them.
In case of a failure to perform such special contract, by the default of the party contracting to do the service, if the money is not due by the terms of the special agreement, and the nature of the contract be such that the employer can reject what has been done, and refuse to receive any benefit from the part performance, he is entitled so to do, unless he have before assented to and accepted of what has been done, and in such case the party performing the labor is not entitled to recover however much he may have done.
But if, upon a contract of such a character, a party actually receives useful labor, and thereby derives a benefit and advantage, over and above the damage which has resulted from a breach of the contract by the other party, the labor actually done, and the value received, furnish a new consideration, and the law thereupon raises a promise to pay to the extent of the reasonable worth of the excess. And the rule is the same, whether the labor was received and accepted, by the assent of the party prior to the breach, and under a contract, by which, from its nature, the party was to receive the labour from time to time until the completion of the whole contract, or whether it was received and accepted by an assent subsequent to the performance of all which was in fact done.
In case such contract is broken, by the fault of the party employed after part performance has been received, the employer is entitled, if he so elect, to put the breach of the contract in defence, for the purpose of reducing the damages, or showing that nothing is due, and the benefits for which he is liable to be charged, in that case, is the amount of value which he has received, if any, beyond the amount of the damage—and the implied promise which the law will raise, is, to pay such amount of the stipulated price for the whole labour, as remains after deducting what it would cost to procure a completion of the whole service, and also any damage which has been sustained by reason of the non fulfilment of the contract.
If in such case it be found that the damages are equal to, or greater than the amount of the value of the labour performed, so that the employer, having a right to the performance of the whole contract, has not upon the whole case received a beneficial service, the plaintiff cannot recover.
 If the employer elects to permit himself to be charged for the value of the labor, without interposing the damages in defence, he is entitled to do so, and may have an action to recover his damages for the non performance of the contract.
If he elects to have the damages considered in the action against him, he must be understood as conceding that they are not to be extended beyond the amount of what he has received, and he cannot therefore afterwards sustain an action for further damages.
ASSUMPSIT for work and labour, performed by the plaintiff, in the service of the defendant, from March 9th, 1831, to December 27, 1831.
The declaration contained the common counts, and among them a count in quantum meruit, for the labor, averring it to be worth one hundred dollars.
At the trial in the C. C. Pleas, the plaintiff proved the performance of the labor as set forth in the declaration.
The defence was that it was performed under a special contract—that the plaintiff agreed to work one year, from some time in March, 1831, to March 1832, and that the defendant was to pay him for said year's labor the sum of one hundred and twenty dollars; and the defendant offered evidence tending to show that such was the contract under which the work was done.
Evidence was also offered to show that the plaintiff left the defendant's service without his consent, and it was contended by the defendant that the plaintiff had no good cause for not continuing in his employment.
There was no evidence offered of any damage arising from the plaintiffs departure, farther than was to be inferred from his non fulfilment of the entire contract.
The court instructed the jury, that if they were satisfied from the evidence that the labor was performed, under a contract to labor a year, for the sum of one hundred and twenty dollars, and if they were satisfied that the plaintiff labored only the time specified in the declaration, and then left the defendant's service, against his consent, and without any good cause, yet the plaintiff was entitled to recover, under his quantum meruit count,  as much as the labor he performed was reasonably worth, and under this direction the jury gave a verdict for the plaintiff for the sum of $95.
The defendant excepted to the instructions thus given to the jury.
The general principle established by all the old cases, is, that where the contract is entire, as where A agrees to do a certain thing, for which B is to make a certain compensation, the doing of the tiling by A is a condition precedent, and he has no remedy until he has fully performed his part.
There are several leading cases relating to the subject. Cutter Adr. v. Powell, 6 D. & E. 320; McMillen v. Vanderlip, 12 Johns. 165; Hudson v. Swift, 20 Johns. 24; Lantry v. Parks, 8 Cowen, 63; Ellis v. Hamlin, 4 Taunt. 52; 11 Com. Law Rep. 251; 17 ditto, 340; Faxon v. Mansfield and Holbrook, Trustee, 2 Mass. Rep. 147; Stark v. Parker, 2 Pick. 267; Mores v. Stevens, 2 Pick. 332.
Hayward v. Leonard, 7 Pick. 181, was a contract to build a house on the plaintiffs land, at a certain price, and in a particular manner. The first count was upon the contract, the second quantum meruit for work and labor, and materials found. The court there decided that the count in quantum meruit might be sustained, and refer with approbation to 14 Mass. 282, and 2 Pick. 267. They say, the defendant saw the work go on from day to day, and found no fault, either with the work or materials, and may be presumed to have agreed to receive the work as it was done, &c.
The case of Wadleigh v. Sutton, an'e 15, is like the case in the 7th Pickering, and may be sustained without affecting the case under consideration.
On a full examination of the decisions upon this subject, no doubt it will be found, that in modern times courts have, to a certain extent, relaxed from the strict rules  formerly adopted, and have sustained a count in quantum meruit in cases where the plaintiff had not fully performed his contract. But all the cases where it has been so held may be distinguished from this case—none have gone the length of maintaining the present action.
Take the cases of contracts to build a house, a bridge, or highway, and all the variety of cases where the agreement consists in certain labor to be done, and materials provided—the contract is not fulfilled according to its terms—the house, or bridge, or highway are built, but not so well done as agreed. No action, therefore, will lie upon the contract. But the court in those cases say when the party for whose benefit the materials are furnished, and the labor done, sees the work from day to day, as it proceeds, sees also the materials, and suffers the building to go on without objection, or without putting an end to the work, it shall be considered that he accepts it—that he in fact consents to abandon the strict terms of the contract, and makes a new one, which is to pay what the labor and materials are reasonably worth.
So also in another class of cases, where an agreement is made for the sale and delivery of articles estimated by weight or measure—Suppose A agrees to deliver me 150 bushels of wheat, at $1,50 per bushel, to be paid when it is all delivered, but he delivers only fifty. If I keep the fifty bushels I make a new contract, and agree to pay what the fifty bushels are worth. But if I decline keeping it, and request A to take it away, he cannot force it upon me nolens, volens, and compel me to pay for it against my consent.
In the foregoing cases the person with whom the contract is made, it is presumed from his conduct, has consented, in the one case to receive less than the whole amount agreed to be delivered, and in the other to receive the labor and materials of a different kind, or in a different form and manner, from that stipulated. He has in short made a new contract, and abandoned the old,  and it is on this ground, and this only, that those decisions can be sustained.
But the case before the court is different from those where it hits been held a quantum meruit lies. It cannot be contended that the defendant consented to receive a part of the labor, and be accountable for such part; no contract to this effect can be implied. He had it not in his power to prevent this part execution, as in the case of building the house, bridge, &c. nor could he deliver back the labor done. If any contract is fastened upon him, it is put upon him against his consent. He made a contract for an entire year's work. He has never consented to receive and pay for any time less than a year. No such consent can be implied.
The cases before cited, in 2 Mass. 147; 2 Pick. 267; 12 Johns. 165; and 8 Cowen, 63; are as fully in point as if made for the occasion; and although courts in modern times may have succeeded in getting around the old law, in sundry cases, it is believed that the decisions last referred to yet stand, having never been overruled, bat remain in full force, and they seem fully to support this defence.
To hold out inducements to men to violate their contracts, when fairly entered into, is of immoral tendency, and whether the decisions have not gone quite far enough, and held out inducements enough to men disposed to disregard their engagements, may perhaps deserve consideration.
PARKER, J. delivered the opinion of the court.
It may be assumed, that the labor performed by the plaintiff, and for which he seeks to recover a compensation in this action, was commenced under a special contract to labor for the defendant the term of one year, for the sum of one hundred and twenty dollars, and that the  plaintiff has labored but a portion of that time, and has voluntarily failed to complete the entire contract.
It is clear, then, that he is not entitled to recover upon the contract itself, because the service, which was to entitle him to the sum agreed upon, has never been performed.
But the question arises, can the plaintiff, under these circumstances, recover a reasonable sum for the service he has actually performed, under the count in quantum meruit.
Upon this, and questions of a similar nature, the decisions to be found in the books are not easily reconciled.
It has been held, upon contracts of this kind for labor to be performed at a specified price, that the party who voluntarily fails to fulfil the contract by performing the whole labor contracted for, is not entitled to recover any thing for the labor actually performed, however much he may have done towards the performance, and this has been considered the settled rule of law upon this subject.
2 Pick. 267, Stark v. Parker; 2 Mass. 147, Faxon v. Mansfield; 12 Johns. 165, McMillen v. Vanderclip; 13 Johns. 94, Jennings v. Camp; 19 Johns, 337, Reab v. Moor; 8 Cowen, 63, Lantry v. Parks; 9 Barn. & Cres. 92, Sinclair v. Bowles; 2 Stark. Rep. 256, Spain v. Arnott.
That such rule in its operation may be very unequal, not to say unjust, is apparent.
A party who contracts to perform certain specified labor, and who breaks his contract in the first instance, without any attempt to perform it, can only be made liable to pay the damages which the other party has sustained by reason of such non performance, which in many instances may be trifling—whereas a party who in good faith has entered upon the performance of his contract, and nearly completed it, and then abandoned the further performance—although the other party has had the full benefit of all that has been done, and has perhaps sustained no actual damage—is in fact subjected to  a loss of all which has been performed, in the nature of damages for the non fulfilment of the remainder, upon the technical rule, that the contract must be fully performed in order to a recovery of any part of the compensation.
By the operation of this rule, then, the party who attempts performance may be placed in a much worse situation than he who wholly disregards his contract, and the other party may receive much more, by the breach of the contract, than the injury which he has sustained by such breach, and more than he could be entitled to were he seeking to recover damages by an action.
The case before us presents an illustration. Had the plaintiff in this case never entered upon the performance of his contract, the damage could not probably have been greater than some small expense and trouble incurred in procuring another to do the labor which he had contracted to perform. But having entered upon the performance, and labored nine and a half months, the value of which labor to the defendant as found by the jury is $95, if the defendant can succeed in this defence, he in fact receives nearly five sixths of the value of a whole year's labor, by reason of the breach of contract by the plaintiff a sum not only utterly disproportionate to any probable, not to say possible damage which could have resulted from the neglect of the plaintiff to continue the remaining two and an half months, but altogether beyond any damage which could have been recovered by the defendant, had the plaintiff done nothing towards the fulfillment of his contract.
Another illustration is furnished in Lantry v. Parks, 8 Cowen, 83. There the defendant hired the plaintiff for a year, at ten dollars per month. The plaintiff worked ten and an half months, and then left saying he would work no more for him. This was on Saturday—on Monday the plaintiff returned, and offered to resume his work, but the defendant said he would employ him no longer.  The court held that the refusal of the defendant on Saturday was a violation of his contract, and that he could recover nothing for the labor performed.
There are other cases, however, in which principles have been adopted leading to a different result.
It is said, that where a party contracts to perform certain work, and to furnish materials, as, for instance, to build a house, and the work is done, but with some variations from the mode prescribed by the contract, yet if the other party has the benefit of the labor and materials he should be bound to pay so much as they are reasonably worth. 2 Stark. Ev. 97, 98; 7 Pick. 181, Hayward v. Leonard; 8 Pick. 178, Smith v. First Cong. Meeting House in Lowell; 4 Cowen, 564, Jewell v. Schroeppel; 7 Green. 78, Hayden v. Madison; Bull. N. P. 139; 4 Bos. & Pul. 355; 10 Johns. 36; 13 Johns. 97; 7 East, 479.
A different doctrine seems to have been holden in Ellis v. Hamlen, 3 Taunt. 52, and it is apparent, in such cases, that if the house has not been built in the manner specified in the contract, the work has not been done. The party has no more performed what he contracted to perform, than he who has contracted to labor for a certain period, and failed to complete the time.
It is in truth virtually conceded in such cases that the work has not been clone, for if it had been, the party performing it would be entitled to recover upon the contract itself, which it is held he cannot do.
Those cases arc not to be distinguished, in principle, from the present, unless it be in the circumstance, that where the party has contracted to furnish materials, and do certain labor, as to build a house in a specified manner, if it is not done according to the contract, the party for whom it is built may refuse to receive it—elect to take no benefit from what has been performed—and therefore if he does receive, he shall be bound to pay the value—whereas in a contract for labor, merely, from day to day, the party is continually receiving the benefit of the con  tract under an expectation that it will be fulfilled, and cannot, upon the breach of it, have an election to refuse to receive what has been done, and thus discharge himself from payment.
But we think this difference in the nature of the contracts does not justify the application of a different rule in relation to them.
The party who contracts for labor merely, for a certain period, does so with full knowledge that he must, from the nature of the case, be accepting part performance from day to day, if the other party commences the performance, and with knowledge also that the other may eventually fail of completing the entire term.
If under such circumstances he actually receives a benefit from the labor performed, over and above the damage occasioned by the failure to complete, there is as much reason why lie should pay the reasonable worth of what has thus been done for his benefit, as there is when he enters and occupies the house which has been built for him, but not according to the stipulations of the contract, and which he perhaps enters, not because he is satisfied with what has been done, but because circumstances compel him to accept it such as it is, that he should pay for the value of the house.
Where goods are sold upon a special contract as to their nature, quality, and price, and have been used before their inferiority has been discovered, or other circumstances have occurred which have rendered it impracticable or inconvenient for the vendee to rescind the contract in toto, it seems to have been the practice formerly to allow the vendor to recover the stipulated price, and the vendee recovered by a cross action damages for the breach of the contract.
"But according to the later and more convenient practice, the vendee in such case is allowed, in an action for the price, to give evidence of the inferiority of the goods in reduction of damages, and the plaintiff who has broken his contract is not entitled  to recover more than the value of the benefits which the Turner, defendant has actually derived from the goods; and where the latter has derived no benefit, the plaintiff cannot recover at all."
2 Stark. Ev. 640, 642; 1 Starkie's Rep. 107, Okell v. Smith.
So where a person contracts for the purchase of a quantity of merchandize, at a certain price, and receives a delivery of part only, and lie keeps that part, without any offer of a return, it has been held that he must pay the value of it. 5 Barn. & Cres. Shipton v. Casson; Com. Dig. Action F. Baker v. Sutton; 1 Camp. 55, note.
A different opinion seems to have been entertained, 5 Bos. & Pul. 61, Waddington v. Oliver, and a different decision was had, 2 Stark. Rep. 281, Walker v. Dixon.
There is a close analogy between all these classes of cases, in which such diverse decisions have been made.
If the party who has contracted to receive merchandize, takes a part and uses it, in expectation that the whole will be delivered, which is never done, there seems to be no greater reason that he should pay for what he has received, than there is that the party who has received labor in part, under similar circumstances, should pay the value of what has been done for his benefit.
It is said, that in those cases where the plaintiff has been permitted to recover there was an acceptance of what had been done. The answer is, that where the contract is to labor from clay to day, for a certain period, the party for whom the labor is done in truth stipulates to receive it from day to day, as it is performed, and although the other may not eventually do all he has contracted to do, there has been, necessarily, an acceptance of what has been done in pursuance of the contract, and the party must have understood when he made the contract that there was to be such acceptance.
If then the party stipulates in the outset to receive part performance from time to time, with a knowledge that the whole may not be completed, we see no reason  why he should not equally he holden to pay for the amount of value received, as where lie afterwards takes the benefit of what has been done, with a knowledge that the whole which was contracted for has not been performed.
In neither case has the contract been performed. In neither can an action be sustained on the original contract.
In both the party has assented to receive what is done. The only difference is, that in the one case the assent is prior, with a knowledge that all may not be performed, in the other it is subsequent, with a knowledge that the whole has not been accomplished.
We have no hesitation in holding that the same rule should be applied to both classes of cases, especially, as the operation of the rule will be to make the party who has failed to fulfil his contract, liable to such amount of damages as the other party has sustained, instead of subjecting him to an entire loss for a partial failure, and thus making the amount received in many cases wholly disproportionate to the injury. 1 Saund. 320, c; 2 Stark. Evid. 643.
It is as "hard upon the plaintiff to preclude him from recovering at all, because he has failed as to part of his entire undertaking," where his contract is to labor for a certain period, as it can be in any other description of contract, provided the defendant has received a benefit and value from the labor actually performed.
We, hold then, that where a party undertakes to pay upon a special contract for the performance of labor, or the furnishing of materials, he is not to be charged upon, such special agreement until the money is earned according to the terms of it, and where the parties have made an express contract the law will not imply and raise a contract different from that which the parties have entered into, except upon some farther transaction between the parties.
 In case of a failure to perform such special contract, by the default of the party contracting to do the service, if the money is not due by the terms of the special agreement he is not entitled to recover for his labor, or for the materials furnished, unless the other party receives what has been done, or furnished, and upon the whole case derives a benefit from it. 14 Mass. 282, Taft v. Montague; 2 Stark. Ev. 644.
But if, where a contract is made of such a character, a party actually receives labor, or materials, and thereby derives a benefit and advantage, over and above the damage which has resulted from the breach of the contract by the other party, the labor actually done, and the value received, furnish a new consideration, and the law thereupon raises a promise to pay to the extent of the reasonable worth of such excess. This may be considered as making a new case, one not within the original agreement, and the party is entitled to "recover on his new case, for the work done, not as agreed, but yet accepted by the defendant." 1 Dane's Abr. 224.
If on such failure to perform the whole, the nature of the contract be such that the employer can reject what has been done, and refuse to receive any benefit from the part performance, he is entitled so to do, and in such case is not liable to be charged, unless he has before assented to and accepted of what has been done, however much the other party may have done towards the performance, lie has in such case received nothing, and having contracted to receive nothing but the entire matter contracted for, he is not bound to pay, because his express promise was only to pay on receiving the whole, and having actually received nothing the law cannot and plight not to raise an implied promise to pay. But where the party receives value—takes and uses the materials, or has advantage from the labor, he is liable to pay the reasonable worth of what he has received. 1 Camp. 38, Farnsworth v. Garrard. And the rule is the same wheth  er it was received and accepted by the assent of the party prior to the breach, under a contract by which, from its nature, he was to receive labor, from time to time until the completion of the whole contract; or whether it was received and accepted by an assent subsequent to the performance of all which was in fact done. If he received it under such circumstances as precluded him from rejecting it afterwards, that does not alter the case—it has still been received by his assent.
In fact we think the technical reasoning, that the performance of the whole labor is a condition precedent, and the right to recover any thing dependent upon it—that the contract being entire there can be no apportionment—and that there being an express contract no other can be implied, even upon the subsequent performance of service—is not properly applicable to this species of contract, where a beneficial service has been actually performed; for we have abundant reason to believe, that the general understanding of the community is, that the hired laborer shall be entitled to compensation for the service actually performed, though he do not continue the entire term contracted for, and such contracts must be presumed to be made with reference to that understanding, unless an express stipulation shows the contrary.
Where a beneficial service has been performed and received, therefore, under contracts of this kind, the mutual agreements cannot be considered as going to the whole of the consideration, so as to make them mutual conditions, the one precedent to the other, without a specific proviso to that effect. 1 H. Black. 273, note, Boone v. Eyre; 6 D. & E. 570, Campbell v. Jones; 10 East, 295, Ritchie v. Atkinson; 4 Taunt. 745, Burn v. Miller.
It is easy, if parties so choose, to provide by an express agreement that nothing shall be earned, if the laborer leaves his employer without having performed the whole service contemplated, and then there can be no  pretence for a recovery if he voluntarily deserts the service before the expiration of the time.
The amount, however, for which the employer ought to be charged, where the laborer abandons his contract, is only the reasonable worth, or the amount of advantage lie receives upon the whole transaction, (ante 15, Wadleigh v. Sutton,) and, in estimating the value of the labor, the contract price for the service cannot be exceeded. 7 Green. 78; 4 Wendell, 285, Dubois v. Delaware & Hudson Canal Company; 7 Wend. 121, Koon v. Greenman.
If a person makes a contract fairly he is entitled to have it fully performed, and if this is not done he is entitled to damages. He may maintain a suit to recover the amount of damage sustained by the non performance.
The benefit and advantage which the party takes by the labor, therefore, is the amount of value which he receives, if any, after deducting the amount of damage; and if he elects to put this in defence he is entitled so to do, and the implied promise which (he law will raise, in such case, is to pay such amount of the stipulated price for the whole labor, as remains after deducting what it would cost to procure a completion of the residue of the service, and also any damage which has been sustained by reason of the non fulfilment of the contract.
If in such case it be found that the damages are equal to, or greater than the amount of the labor performed so that the employer, having a right to the full performance of the contract, has not upon the whole case received a beneficial service, the plaintiff cannot recover.
This rule, by binding the employer to pay the value of the service he actually receives, and the laborer to answer in damages where lie docs not complete the entire contract, will leave no temptation to the former lo drive the laborer from his service, near the close of his term, by ill treatment, in order to escape from payment; nor to the latter in desert his service before the stipulated time, without a sufficient reason; and it will be in most in  stances settle the whole controversy in one action, and prevent a multiplicity of suits and cross actions.
There may be instances, however, where the damage occasioned is much greater than the value of the labor performed, and if the party elects to permit himself to be charged for the value of the labor, without interposing the damages in defence, he is entitled to do so, and may have an action to recover his damages for the nonperformance, whatever, they may be. 1 Mason's Rep. Crowninshield v. Robinson.
And he may commence such action at any time after the contract is broken, notwithstanding no suit has been instituted against him; but if he elects to have the damages considered in the action against him, he must be understood as conceding that they are not to be extended beyond the amount of what he has received, and he cannot afterwards sustain an action for farther damages.
Applying the principles thus laid down, to this case, the plaintiff is entitled to judgment on the verdict.
The defendant sets up a mere breach of the contract in defence of the action, but this cannot avail him. He does not appear to have offered evidence to show that he was damnified by such breach, or to have asked that a deduction should be made upon that account. The direction to the jury was therefore correct, that the plaintiff was entitled to recover as much as the labor performed was reasonably worth, and the jury appear to have allowed a pro rata compensation, for the time which the plaintiff labored in the defendant's service.
As the defendant has not claimed or had any adjustment of damages, for the breach of the contract, in this action, if he has actually sustained damage he is still entitled to a suit to recover the amount.
Whether it is not necessary, in cases of this kind, that notice should be given to the employer that the contract is abandoned, with an otter of adjustment and demand of payment; and whether the laborer must not wait until  the time when the money would have been due according to the contract, before commencing an action, (5 B. & P. 61) are questions not necessary to be settled in this case, no objections of that nature having been taken here.
Original Item: "Britton v. Turner"

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COMPLAINT for divorce filed in the Middlesex Division of the Probate and Family Court Department on May 16, 2011.
A motion to confirm an arbitration award on complaints for modification and contempt was heard by Patricia A. Gorman, J.
Floyd H. Anderson for the husband.
Lora Ann Fickett, pro se.
BLAKE, J. The husband, David E. Gravlin, Jr., appeals from four Probate and Family Court judgments dated April 16, 2014, that issued following the confirmation of an original and an amended arbitration award in favor of the wife, Lora Ann Gravlin. [Note 1] He argues that the judge improperly delegated her authority by allowing the parties' joint motion to submit their pending complaints to binding arbitration, and abused her discretion in entering judgments based on the arbitrator's award. We affirm.
Background. The parties executed a separation agreement (agreement) on October 17, 2011, which was incorporated and merged in a judgment of divorce nisi on November 17, 2011. The agreement provides, in pertinent part, that David is to pay Lora Ann $750 per week as child support for the support of their three minor children. The agreement explains that "[t]his amount exceeds the amount of support required pursuant to the child support guidelines currently in effect, and is reflective of the parties' shared desire to maintain the marital home for the benefit of the children."
"1. [David] has experienced a major loss of income and the said child support order is therefore now inconsistent with the child support guidelines even if [Lora Ann] is considered to be the primary custodial parent.
2. The co-parenting schedule actually being carried out by the parties since said divorce judgment is consistent with equally shared physical custody and therefore [David] asserts that child support should be modified based on that schedule as well."
Lora Ann filed both an answer denying the change in circumstances alleged and a counterclaim for modification seeking an order requiring David to pay one half of the cost of the children's extracurricular activities, equipment, and school fees. Over the span of about one year, she also filed multiple complaints for contempt alleging, among other things, that David was in arrears on his child support obligation. David filed answers to those complaints claiming that Lora Ann was not entitled to the requested relief.
Discussion. 1. Delegation of judicial authority. As a threshold matter, arbitration has long been recognized as a valid means of resolving disputes between divorcing parties. See Kutz v. Kutz, 369 Mass. 969 , 970 (1976); Reynolds v. Whitman, 40 Mass. App. Ct. 315 , 316-317 (1996). A judge may not, however, order parties to submit to binding arbitration absent their agreement, as such an order would be an improper delegation of the judge's authority under G. L. c. 208, § 34. See Gustin v. Gustin, 420 Mass. 854 , 857 (1995) ("a judge typically cannot order parties to a dispute to submit that dispute to binding arbitration unless the parties agree to do so"). [Note 7] Indeed, this court and the Supreme Judicial Court have repeatedly held that a judge may not compel an unwilling party to submit to a nonjudicial third-party decision-making authority. See Bower v. Bournay-Bower, 469 Mass. 690 , 691 (2014) (judge may not order parties to submit resolution of conflict to a parent coordinator); Ventrice v. Ventrice, 87 Mass. App. Ct. 190 , 193-194 (2015) (judge may not order parties to a divorce proceeding to engage in out-of-court mediation, without their consent and at their own expense, prior to filing subsequent actions in court).
2. Confirmation of the award. If parties do agree to resolve their disputes though binding arbitration, following the arbitrator's decision and award, the judge retains the "nondelegable duty to make the final and binding resolution of the case." Ventrice v. Ventrice, supra at 194. David claims that the judge abused her discretion in this regard in dismissing his complaint for modification of his child support obligation. Specifically, he complains that the arbitrator disregarded the plain language of G. L. c. 208, § 28, failed to make findings justifying his refusal to modify the initial child support order, and used faulty reasoning rather than applying the applicable statutes and child support guidelines.
Because David did not include, as part of the record on appeal, a transcript of the proceedings wherein the judge confirmed the arbitrator's original and amended awards, he has waived this claim. See Mass.R.App.P. 8(b)(1), as amended, 430 Mass. 1601 (1999); Cameron v. Carelli, 39 Mass. App. Ct. 81 , 84 (1995). Without such a record, we are unable to examine the process by which the judge reviewed the original and the amended arbitration decision and award.
Where, as here, in proceedings before the Probate and Family Court, parties freely, and with the advice of counsel, enter into arbitration agreements to resolve conflicts outside of that court, we see no reason to depart from these well-settled principles of law. Accordingly, the judgments dated April 16, 2014, as to the complaint for modification filed October 9, 2012, and the complaints for contempt filed February 28, 2013, April 3, 2013, and November 18, 2013, are affirmed.
[Note 1] As the parties share a surname, we shall use their first names for ease of reference.
[Note 2] The pending complaints included David's complaint for modification filed October 9, 2012, and Lora Ann's counterclaim for modification and four complaints for contempt filed February 28, 2013, April 3, 2013, July 5, 2013, and November 18, 2013.
[Note 3] The arbitration agreement also describes the complaints to be addressed, the process to be used, and the hourly rate and retainer of the arbitrator.
[Note 4] The Probate and Family Court docket does not reflect the filing of an opposition to the original or the amended arbitration decision and award. It is unclear to this court what transpired at the hearing held on April 16, 2014, scheduled at the parties' request, because no transcript was provided.
[Note 5] In his notice of appeal, David specified that he was appealing the judgments regarding his complaint for modification filed October 9, 2012, and Lora Ann's complaints for contempt filed February 28, 2013, April 3, 2013, and November 18, 2013.
[Note 6] To the extent that David's brief contains claims regarding proceedings that were subsequent to the filing of his notice of appeal, we do not consider them.
[Note 7] The court in Gustin v. Gustin held that to preserve judicial resources, a judge to a divorce proceeding may order the parties, without their agreement, to submit the division of household property to an intermediary, whose recommendation would then be subject to the judge's approval. Gustin v. Gustin, supra at 857-858.
[Note 8] The case of Bloksberg v. Bloksberg, 7 Mass. App. Ct. 233 , 234-235 (1979), cited by David, is consistent with our result. That case holds that an arbitration provision within a separation agreement, even "if validly incorporated in the decree nisi, could not have the effect of precluding resort to the Probate Court for enforcement or modification of the alimony and child support provisions of the decree. Any other result would enable a judge, by inserting or incorporating an arbitration provision in the judgment, to divest the court of the power given it by G. L. c. 208, § 37, to modify orders for alimony and child support." Bloksberg v. Bloksberg, supra at 235. In other words, a judge may not, through the entry of a decree nisi incorporating a separation agreement, compel parties to arbitrate disputes. The language of Bloksberg does not, however, prevent parties from agreeing to resolve their present disputes through binding arbitration.
[Note 9] In the domestic relations case of Kutz v. Kutz, the Supreme Judicial Court cited to certain sections of the Massachusetts Uniform Arbitration Act for Commercial Disputes, G. L. c. 251, but did not go further to apply that statute to arbitration matters arising in the Probate and Family Court. Kutz v. Kutz, supra at 970.
[Note 10] Probate and Family Court cases that are submitted, by agreement, to binding arbitration do, however, retain one unique characteristic. Arbitration awards will never bind the parties in perpetuity as to issues of child custody, child support, or merged alimony provisions, as they remain subject to modification under the applicable standards. The division of assets, however, survive the entry of judgment and, therefore, are not subject to modification.


Once the scope of applicability of a uniform act is determined the next question to address is that of the general criteria for recognition and enforceability of foreign judgments in order to allow for their enforcement, i.e. conditions for recognition and enforcement. This will be the most important part of any uniform statute. It will determine which foreign judgments will be recognized or enforced in a Canadian province and which will be denied such recognition or enforcement.
 A primary concern of the common law rules on the recognition and enforcement of foreign judgments has been the territorial competence of the foreign court. This rests on the assumption that the original court must have a legitimate claim to subject the defendant to its jurisdiction. A defendant's assets here should not be exposed to the enforcement of a foreign judgment where it was unfair under the circumstances to expect the defendant to defend the action in the foreign country. The common law approach has been to define certain connections with the original court (presence of the defendant, consent by the defendant, or real and substantial connection with the original court's jurisdiction) as making its assertion of jurisdiction legitimate. It is possible by statute or treaty to dispense with territorial criteria and to give blanket recognition to all of a country's judgments, if the jurisdictional practices of that country are regarded as bound in every case to be compatible with Canadian notions of fairness. In the domestic context, this is in part the approach of the Uniform Enforcement of Canadian Judgments Act, because that statute was linked to the assumption that other provinces would adopt the Uniform Court Jurisdiction and Tranfer of Proceedings Act (1994 ULCC Proceedings) and so harmonize their jurisdictional practices.
 Even if the foreign court was a suitable place to hear the original action we might be reluctant to enforce a resulting judgment in Canada if the procedures followed by that court failed to conform to our notions of due process. To offer three examples, if the foreign court failed to give the defendant notice of the original action and proceeded on an ex parte basis, or if the foreign court refused to give one of the parties a chance to present its case, or if the foreign court was biased between the parties we would be reluctant to enforce a resulting judgment. This concern is dealt with under the heading of defences to enforcement.
 Even if the foreign court were an appropriate place to hear the original action and employed unobjectionable procedures, we might be reluctant to enforce a resulting judgment if the foreign court applied a rule or standard of substantive law which we found deeply objectionable. This, too, is dealt with under the heading of defences to enforcement.
 Sections 2, 3 and 4 which follow deal in more detail with the concerns in the preceding three paragraphs. Section 5 addresses some residual issues.
 The common law has always regarded the territorial limits on a foreign court's jurisdiction as irrelevant if the defendant consented to its exercise of jurisdiction. Consent could be by appearing in the proceeding, by the defendant's having initiated the litigation as plaintiff in the same court, or by the defendant's previously having made a genuine agreement to submit to that court's jurisdiction. A defendant who did any of these things, and thus attorned to the foreign court's jurisdiction, could not afterwards dispute the foreign court's right to impose liability on the defendant.
 We think there will be little dispute that a future statute should likewise treat consent as sufficient to justify recognition or enforcement. The only point on which the common law is unsettled is what degree of participation in a foreign legal proceeding constitutes attornment. The English courts regard the defendant as having submitted, even if all the defendant did was to apply to the court to decline jurisdiction (Henry v. Geoprosco Int'l Ltd.,  Q.B. 726). Canadian courts have on the whole rejected this view and treat the making of any type of jurisdictional argument to the foreign court as falling outside the category of attornment (Dovenmuehle v. Rocca Group Ltd. (1981), 34 N.B.R. (2d) 444 (C.A.), aff'd,  2 S.C.R. 53; Re McCain Foods Ltd. (1979), 103 D.L.R. (3d) 724 (Ont. H.C), aff'd, 103 D.L.R. (3d) 724 at 734 (Ont. C.A.), leave to appeal refused, 31 N.R 449n (S.C.C.)). We favour the latter view for incorporation in a statute. It is in the interests of the international legal order that defendants not be discouraged from trying to resolve jurisdictional disputes at the outset, before the foreign court. If they do so, then lose the jurisdictional argument and withdraw, they should not be treated worse than if they had never appeared at all.
 As far as extraprovincial judgments are concerned, the Canadian common law regards a defendant who did not consent to the other province's exercise of judicial jurisdiction as nevertheless bound by it in two circumstances: (1) if the defendant was served with process in the territory of the other province, or (2) if a real and substantial connection existed between the facts giving rise to the action and the other province (Morguard). Judgments in default of appearance can be enforced against the defendant if either of these circumstances was present. It is clear that (1) also applies to foreign judgments, but it is not altogether whether, or to what extent, (2) does. The Morguard decision, and the subsequent Supreme Court of Canada decisions that considered it, were all concerned with Canadian judgments. However, lower courts have almost unanimously extended the Morguard principle to judgments from other countries. Therefore, we assume for the present purpose that condition (2) is also a ground for recognizing and enforcing a foreign judgment where the defendant has not consented to the foreign court's jurisdiction.
 The question with respect to a foreign judgments statute is how closely to stick to the common law criteria for recognition, where the judgment is a default judgment against a non-consenting defendant.
(i) Preliminary question 1: territorial criteria or blanket recognition?
 One advantage of having a list of countries whose judgments (either with defined exceptions or without exception) would be recognized without any question of territorial competence would be predictablity. Another would be that it opens up the possibility, adverted to earlier, of a two-tiered statutory scheme whereby countries that are prepared to enforce Canadian judgments to a particular standard will be entitled to a readier enforcement of their judgments in Canada. In fact, if such a two-tier system were adopted, there are probably compelling reasons for tying it to a system of bilateral treaties, or perhaps less formal agreements, between Canada and the foreign country in question rather than a decision by each enacting province. The latter could lead to a system of differential enforcement from one province to another, with a foreign country being on the "A list" in some provinces but not others. Lack of uniformity is one of the things the proposed model Act is supposed to correct. We note also that some commentators have suggested to us that in their view a two-tiered system has serious disadvantages, namely, that it erects what might be seen as invidious distinctions between some countries and others, to the detriment of Canada's foreign relations. At the very least that is a further argument for tying any such system to decisions by Canada rather than by provinces.
(ii) Preliminary question 2: specific territorial criteria or general criterion?
 Assuming territorial criteria are used in the statute, the next issue is whether to work with a list of territorial connections with the original country that are sufficient for recognition, or with a general criterion paralleling the one the Canadian common law has developed, "real and substantial connection", also put more broadly as compatibility with "order and fairness". We will consider how a general or omnibus criterion could be framed, and then discuss the reasons that can be argued for and against it as compared with a closed list of territorial criteria.
 The matter is complicated because the requirement for order and fairness may have constitutional status, so that any statute which attempted to specify what was meant by order and fairness would run the risk of being found unconstitutional if the courts came to a different view than the statute's drafters did about how that requirement should be made specific. Even if the order-and-fairness requirement, as applied to foreign judgments, does not have full constitutional status, it certainly does have that status for extraprovincial judgments. And there seems good reason to ensure that the standard applied to foreign judgments as at least as stringent as in the intra-Canadian context.
(e) there is a real and substantial connection between [enacting province or territory] and the facts on which the proceeding against that person is based.
s. 10. Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between [enacting province or territory] and the facts on which a proceeding is based, a real and substantial connection between [enacting province or territory] and those facts is presumed if . . . .
There then follows a list of examples which we do not reproduce here. The opening words of s. 10 show that the examples listed in the remainder of that section operate only as non-conclusive presumptions. Their presence in a given case does not preclude the party opposing enforcement from arguing that no substantial connection exists. Likewise their absence does not prevent the party seeking enforcement from arguing that such a connection does exist.
 The UCJPTA strikes a good balance between specificity and open-endedness, and it probably conforms to the requirments of the constitution. Subject to one concern which we mention below, there is no reason why the approach to territorial competence should differ depending on whether the judgment is a foreign or merely an extra-provincial one. In addition there are obvious benefits if the approach to territorial competence for intra-Canadian judgements is identical that for foreign ones: case law developed under one statute can inform that developed under the other. For that matter, the link between the two could be made explicit by providing simply in the foreign judgments statute that a foreign judgment is entitled to recognition if the foreign court had territorial competence as defined in the UCJPTA.
 There is one aspect of territorial competence which is not directly touched on in the UCJPTA but which might be addressed in legislation dealing with foreign judgments. The foreign court might have had territorial competence according to the "real and substantial connection" type of criteria, but still have been a seriously inconvenient forum for litigation of the original action. In a Canadian court this would normally be resolved by a motion to decline jurisdiction on the basis of forum non conveniens, but a foreign court might not accept arguments of forum non conveniens, or, if the defendant did not appear before the foreign court, the issue of forum conveniens would not have been raised at all. Should a defendant be able to resist the enforcement of a foreign judgment on the ground that the foreign court was a seriously inconvenient forum? The UECJA did not need to address this issue in the context of intra-Canadian judgments, since all Canadian provinces employ the doctrine of forum non conveniens and it is part of the UCJPTA. However, not all foreign courts follow the same approach.
 In the United States the Uniform Foreign Money-Judgments Recognition Act recognizes this factor as a discretionary ground for non-recognition. S. 4 of that model statute authorizes refusal of recognition where the U.S. court "believes the original action should have been dismissed by the court in that foreign country on grounds of forum non conveniens." This ground for denying enforcement operates solely where the foreign court took jurisdiction "only on the basis of personal service". Since mere personal service does not meet the UCJPTA's initial test for territorial competence, there may be less need for a provision of this sort on Canada. We see no overwheleming argument in favour of a provision like s. 4 of the American Uniform Foreign Money-Judgments Act. Nevertheless this issue does not seem to have been considered in Canada, and, if the broader approach is taken, we recommend that consideration be given to including in any uniform act a discretionary right to preclude enforcement where a foreign court which had territorial competence was neverthless a seriously inconvenient place to litigate the original action.
 The reasons in favour of a single omnibus criterion, albeit with listed presumptively adequate connections, have already been indicated. It would allow non-Canadian judgments to be recognized on the same criterion as Canadian judgments are recognized at common law, subject only to the forum non conveniens point just mentioned. It would avoid creating a third regime for the recognition of judgments by Canadian courts, one for the common law recognition and enforcement of Canadian judgments, a second for enforcement of Canadian judgments under the UECJA (assuming that Act comes to be broadly accepted), and a third, quite distinct, for the enforcement of non-Canadian judgments under the statute being discussed in this paper.
 Probably the major reason that can be argued against a single omnibus criterion, and in favour of a closed list of territorial criteria, is greater predictability of result. One of the main problems with the Morguard approach, possibly exaggerated by some but nevertheless significant, is its uncertainty. The UCJPTA technique of a list of presumptively valid territorial grounds lessens the uncertainty but does not eliminate it, since the listed grounds are neither exhaustive nor conclusively valid. It can also be said that if a recognition and enforcement statute does little more than restate the Morguard test, why not just leave things as they are?
 A secondary reason that can be argued against a single criterion paralleling the Morguard test is that it is too generous in comparison to the rules that most countries apply to the recognition of Canadian judgments. We do not have empirical grounds for saying whether this is in fact true, but it is widely believed that Canada is now at the liberal end of the spectrum when it comes to the recognition and enforcement of judgments from other countries.
 The choice between an omnibus criterion and a closed list of territorial criteria therefore involves a number of rather complex pros and cons. We ourselves are in two (separate) minds on the issue. For the purposes of this discussion paper, we present the two options: (1) an omnibus criterion with presumptions, and (2) a closed list of specific territorial criteria, as equally viable.
 There is also a third option that strikes a compromise between the two: (3) a list of specific territorial criteria that are conclusively sufficient (unlike the UCJPTA model, where they are only presumptively so), plus an additional, open-ended criterion - in effect, any case where, despite the lack of one of the listed territorial criteria, the court is satisfied that the "order and fairness" standard is met.
 We now turn to some specific territorial criteria that might form part of a foreign judgments statute. We compare them to the existing law, and indicate whether we think they could be treated as conclusively or presumptively sufficient to entitle the foreign judgment to recognition in Canada.
 At common law, a foreign court was traditionally regarded as having jurisdiction if the defendant was served with process while present in the foreign country. An artificial person was considered present if it carried on business there at a definite and reasonably permanent place.
 We do not think that the place of service should be a criterion for territorial competence. In the case of natural persons, it was unclear whether the fact of service was enough if the person's presence in the foreign country was only transitory (Carrick Estates Ltd. v. Young (1987), 43 D.L.R. (4th) 461 (Sask. C.A.)). The Morguard principle makes it doubtful whether a natural person's presence in the jurisdiction, without any real and subsantial connection, is even a constitutionally viable basis for territorial competence. In the case of artificial persons, it was the carrying on of business, not the place of service, that was the real justification for taking jurisdiction. Moreover, the UCJPTA adopts criteria for territorial competence of Canadian courts based, not on the place of service, but on actual territorial connections. So, for the most part, does the new Canada-France Convention.
(iv) Specific criteria based on the defendant's personal or continuing business connection with the foreign country.
 A natural or artificial person with a strong and continuing connection with the foreign country cannot complain if it is made subject to the jurisdiction of that country's courts. However, the positions of the two types of defendant are somewhat different.
 For natural persons, this kind of connection could be defined by a number of terms: ordinary residence (used in the UCJPTA), habitual residence, or domicile (used - but not in the Anglo-Canadian meaning - in the Brussels and Lugano Conventions, and in the Civil Code of Quebec). In the Canadian common law context, ordinary residence is probably the most appropriate term.
 For artificial persons, the traditional criterion of carrying on business in the foreign country through a definite and reasonably permanent place has proved workable and is a familiar concept. It, too, is used in the UCJPTA (s. 7(c)) for defining the "ordinary residence" of a corporation. However, for the purposes of the recognition and enforcement of foreign judgments, we think that a corporation that is "present" or "ordinarily resident" in this sense in country X should not thereby be subject to the jurisdiction of X's courts in respect of litigation that has nothing to do with the business actually done in X. For the purpose of enforcing foreign judgments, we suggest the criterion for artificial persons should be that if the corporation carries on business in the foreign country it is bound by any judgment in a dispute arising out of the business carried on in that country. This qualification is used in the Brussels and Lugano Conventions, and also appears in the new Canada-France Convention .
 In relation to artificial persons, the suggested criterion would be narrower than the territorial competence claimed in the UCJPTA, which is not limited by the origin of the dispute. Our own courts' jurisdiction, however, can be tempered with forum non conveniens. It must be remembered that criteria for the jurisdiction of a foreign court, for the purposes of recognition of the court's judgments, must be defined so that the enforcement of a default judgment would be fair. It is only in respect of default judgments that these criteria matter. If the judgment is in a defended proceeding, the basis for recognition is consent.
 Aside from the non-consenting defendant's presence in the foreign country, it is the connection between the foreign country and the subject matter of the proceeding that may justify recognition of the judgment. The common law gives guidance here only to the extent that cases applying the Morguard principle have established a pattern. Before Morguard a non-consenting defendant, who was not present in the foreign country, was not bound by any judgment. For the purposes of this discussion paper, we suggest the following four criteria as territorial connections that could be regarded as sufficient to warrant recognizing a money judgment. They are taken in part from the territorial connections that the UCJPTA lists in s. 10 (as presumed real and substantial connections), and in part from the decided cases on Morguard. No doubt more could be suggested, but these seem to us to cover most of the ground.
 The judgment is in respect of obligations arising out of a contract that, to a substantial extent, was to be performed in the foreign country (cf. UCJPTA s. 8(e)(i); Moses v. Shore Boat Builders Ltd. (1993), 106 D.L.R. (4th) 654 (B.C.C.A.), leave to appeal refused,  1 S.C.R. xi.
 The judgment is in respect of a consumer transaction, and consumer is entitled to the protection of the law of his or her own jurisdiction. For example, the rule could refer to obligations arising out of the sale of property, services, or both to a person in the foreign country, for use other than in the course of the purchaser's trade or profession, and the defendant solicited that person's business in that country (cf. UCJPTA s. 8(e)(iv); McMickle v. Van Straaten (1992), 93 D.L.R. (4th) 74 (B.C.S.C.)).
 The judgment is in respect of a tort committed by the defendant in the foreign country. (Cf. UCJPTA s. 8(g); Moran v. Pyle National (Canada) Ltd.,  1 S.C.R. 393.) This would be a broad criterion with a lot of room for argument, but Canadian courts are relatively familiar with the Moran v. Pyle approach to determining the locus of a tort.
 As mentioned above, there is little debate over the fact that certain serious and fundamental defects in the process of the original foreign court give rise to a legitimate independent reason for refusing to enforce a judgment of that court. The Enforcement of Canadian Judgments Act provides that this is not a ground for refusing to enforce a Canadian judgment (s. 6(2)(c)). The reason for excluding this as ground for non-recognition of extraprovincial judgments is that unfair process is not a problem within Canada. Of course Canadian courts may fall prey to procedural irregularities, but any defect in the process of the original court may be dealt with on appeal in that original province, and, at least in theory, by the Supreme Court of Canada. No one suggests, however, that this rationale extends to foreign judgments.
 The Civil Code of Québec precludes enforcement of a foreign judgment if "the decision was rendered in contradiction of the fundamental rules of procedure" (Art. 3155 (3)). This parallels common-law rules which preclude enforcement. Those common law rules adopt a number of labels, the most common being natural justice, fundamental justice and fraud. In addition to those general labels, some procedural issues are sometimes seen to stand on their own -- the best example here being the requirement that the judgment debtor must at least have received reasonable notice of the foreign proceeding.
 In our view the question here is not whether procedural unfairness should be grounds for denial of recognition, but in how much detail the requirments of fair process should be expressed. We are aware that one of the charges against the common-law rules is that they are uncertain. That would suggest that a uniform statute attempt some more specific definition of procedural unfairness. Nevertheless it is not clear that this particular aspect of the common law rules (as opposed to some others) is one which has given rise to charges of uncertainty and vagueness. If it is not, then there would seem to be some advantage of including in any uniform act only a general requirement similar or even identical to art. 3155 of the Civil Code of Québec.
 On the other hand, if this is perceived to be too uncertain it may preferable to be more specific by listing a number of grounds here: fundamental rules of procedure, fraud, insufficient notice to defendant. It is, of course, possible to get more specific than that: a model act could, for example, stipulate that the foreign judgment would not be enforceable if the defendant were denied the right to cross-examine witnesses or to make closing argument. We suggest that that level of specificity is unnecessary and unhelpful. It will never be possible to predict in advance all the types of procedural irregularities that the courts of all the countries in the world might indulge in. Something that, taken alone, looks like a procedural defect, might not be one if examined in context. But it seems unlikely that a statute could ever anticipate all such contexts. Accordingly we recommend that any uniform act address the issue of unfair process with a provision similar to art 3155 of the Civil Code of Québec, with the possible addition, should greater specificity seem necessary, of additional defences relating to fraud and lack of notice.
Art. 3155 A Québec authority recognizes and, where applicable, declares enforceable any decision rendered outside Québec except in the following cases: . . .
(5) the outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations . . . .
 We think this general approach is correct. Despite the fact that declining to define this term means that, in this respect the model statute will not significantly alter the existing judge-made test, we think that (1) this is not an area in which existing uncertainty is a problem and (2) further specificity is impossible to achieve. We see no need for the phrase in the Reciprocal of Judgments Act, "would not have been entertained by the registering court . . . ." In our view the question is not whether the action would have been entertained, but rather where the foreign judgment in question would have been granted. In this respect the focus of the Québec Civil Code on "the outcome" is correct. Accordingly we prefer the formulation in the Enforcement of Canadian Judgments Act. Thus we recommend that any uniform statute on enforcement of foreign judgments contain a public policy defence parallel to that in the Uniform Enforcement of Canadian Judgments Act.
 One commentator on a draft of this report suggested that the concern dealt with in the previous section (unfair process, denial of natural justice) could be dealt with under the public policy heading, and that judges might feel more comfortable in assessing alleged defects in foreign procedure if the issue were characterized as one of public policy. Although that is not our recommendation, it would certainly be possible to approach matters in this way, perhaps by defining public policy so as to make it clear that it embraces both substantive and procedural concerns.
 A significant sub-category of offensive foreign law concerns the extraordinarily high awards under the categories of (1) punitive damages and (2) damages for pain and suffering that are issued by some courts, particularly the courts of some American states. These can exceed by several orders of magnitude the damages that might be awarded under those heads in a comparable action in this country. To the extent that we view such awards as inappropriate then, although we may view the substantive law which was applied in the original proceeding as inoffensive, we may view the remedial law in that proceeding as offensive.
 One commentator on a draft of this report suggested that punitive damages in foreign judgments should be treated as penalties, with their enforcement in Canada prohibited entirely. Such a proposal would represent a considerable change in the existing law, but certainly merits discussion. In our view, given the fact that Canadian courts award punitive damages, there is insufficient justification for a blanket refusal to enforce foreign judgments containing punitive damages awards. We recommend a more restrained approach which we set out in the following paragraphs.
 A possible deficiency of the common law here is that, for the most part, courts have seen themselves as required to deal with such awards on an all-or-nothing basis. Although the common law permits courts to examine separately various heads of damage -- possibly enforcing some head of damage which declining to enforce others -- it does not appear to permit adjustment or scaling down within individual heads of damage. Thus, either the high foreign award for punitive damages will be unenforceable on grounds public policy, or it will not be against public polciy, in which case the entire amount of the award must be recognized. There is no middle ground. Most commonly such awards are recognized in their entirely, and it is this fact which contributes to the perception, mentioned in the terms of reference, that Canadian defendants are at risk and that our attitude to foreign judgements is too lenient.
 A possible avenue for statutory reform is to permit courts to recognize part but not all of an excessively high punitive damages or pain and suffering award. A precedent here is a provision from a proposed (but now abandoned) bilateral judgments enforcement treaty between the United States and the United Kingdom. Article 8A of the draft convention was inserted to please the U.K.
Where the respondent establishes that the amount awarded by the court of origin is greatly in excess of the amount, including costs, that would have been awarded on the basis of the findings of law and fact established in the court of origin, had the assessment of that amount been a matter for the court addressed that court may, to the extent then permitted by the law generally applicable in that court to the recognition and enforcement of foreign judgments, recognize and enforce the judgment in a lesser amount.
 We do not set out the foregoing provision as a proposed model for a Canadian uniform act, merely as an example of a statutory provision which would permit a Canadian court to scale down certain foreign court awards with rejecting them entirely.
 Should such a provision be considered there are several points which should be noted. First it is important to consider the putatively excessive foreign judgment in its entirety. For example, one explanation for some high American awards for punitive damages or for pain and suffering may be the fact American awards for court costs, unlike ours, do not generally award costs to the victorious party. In the U.S.A. even the winners must pay their own lawyer. Perhaps punitive damages are an attempt to compensate victorious plaintiffs for this arguably unfair costs rule. Presumably that is why the quoted provision from the draft U.K.-U.S.A. convention employed the words "including costs". More generally it is important, if an enforcing court is to be ptermitted to scale down one head of damage of a foreign award, that the enforcing court be directed to consider the alleged excessiveness in light of the entire award, including costs.
 Secondly, we suggest that any such power to scale down excessive awards for punitive damages or pain and suffering should be exercised in light of the parties' residence and place of acting. While the parties' residence and place or acting are not relevant with respect to matters which are genuine public policy concerns, as we have noted above, we do not think that punitive damage awards fall into this category. They are matters of local economic policy, properly applicable to activities which take place within a jurisdiction, but (like antitrust matters) not necessarily properly extended to activities which take place elsewhere. For example, in the case of two American residents who are parties to an original action in an American court, we would presumably have little reason to refuse to enforce the full amount of the American award in this country. Our main concern is presumably with Canadian residents who are subject to excessive American damages awards. In addition it may be the case that we only seek to protect Canadian residents in respect of their actions which take place largely in this country. In short, unlike the provision above from the U.K.-U.S.A. draft treaty, any such provision should direct a Canadian court which is considering scaling back an excessive foreign award for pain and suffering or punitive damages, to find that in the light of the defendant's residence and the relationship of the defendant's activities to the foreign country, it is manifestly unjust that the defendant be exposed to damages on such a scale. This issue is a complex one and we acknowledge that it is not explored in detail here. To give courts such a discretion is to undermine significantly the certainty that a particular foreign judgment will be enforced. It is, however, a concern that is often raised in discussions of the current liberal approach to enforcing foreign, and especially United States, judgments. We suggest it merits further consideration and in that connection we note that the question of punitive damages is being explored in the discussions going on at the Hague Conference on Private International Law. Developments on this issue at the Hague Conference may provide a helpful model for a uniform Canadian act.
 We note that, although there has been some voicing of concerns regarding high awards for punitive damages and for pain and suffering, particularly in American courts, there has as yet been no discussion of the sort of response we are discussing here. To our knowledge this sort of proposal is being advanced in Canada for the first time here. In light of that we do not feel confident in making a firm recommendation either way on this issue. Nevertheless we think it this may be a plausible and measured response to an acknowledged concern. In consequence, we recommend that the ULC give consideration to including in its uniform act a provision which would permit courts to scale back, without rejecting entirely, heads of damage which, by Canadian standards are so excessive as to offend our sense of fundamental justice.
 There are a couple of residual matters that are relatively uncontroversial. At common law no foreign judgment could be granted recognition unless it was final, and this common law rule was incorporated in the Reciprocal Enforcement of Judgements Act. This requirement is also explicitly included in the Civil Code of Québec (art. 3155 (2)) and the American Uniform Foreign Money-Judgments Act, and it is a ground for making an order staying enforcement under the UECJA. Subject to possible modification to take account of provisional measures and orders subject to variation, like maintenance orders, there seems little question that this should be a part of any uniform Canadian statute.
 A related issue concerns foreign judgments which, while technically final, are being appealed or with respect to which the period for launching an appeal has not yet expired. Although this was not, strictly speaking, a bar to enforcement at common law, it was added as a defence to enforcement in both the Reciprocal Enforcement of Judgments Act and the Uniform Enforcement of Canadian Judgments Act. Again this requirement seems uncontroversial.
 In addition, there are questions which arise when there is more than one court proceeding in respect of a single underlying matter. The Civil Code of Québec (art. 3155 (4) deals with that matter by precluding enforcement of a foreign judgment where a dispute between the same parties, based on the same facts and having the same object has given rise to a decision rendered in Québec, whether it has acquired the authority of a final judgment (res judicata) or not, or is pending before a Québec authority, in the first instance, or has been decided in a third country and the decision meets the necessary conditions for enforcement in Québec . . . .
A comparable provision appears in the new Canada-France Convention (not yet implemented), in the Brussels Convention (art. 27) and, as a discretionary ground for non-recognition, in the U.S. Uniform Foreign Money-Judgements Recognition Act. Again it seems relatively uncontroversial that a uniform uniform act for enforcement of foreign judgment should contain a provision making this at least a discretionary ground for non-recognition.


JULIE S. SNEED, UNTIED STATES MAGISTRATE JUDGE.
THIS MATTER is before the Court on the Motion to Return Property (“Motion”) filed by Oscar Jose Barquin Vazquez. (Dkt. 176.) Mr. Vazquez seeks the return of a 2014 Jeep Grand Cherokee seized by the Drug Enforcement Administration (“DEA”) from Defendant Jose Carlos Polanco Vazquez's residence on March 9, 2017. In response, the Government argues that Mr. Vazquez was provided reasonable notice of the administrative forfeiture proceedings concerning the vehicle, and as such, the Court lacks jurisdiction to order the Government to return the vehicle to Mr. Vazquez. (Dkt. 186.) Upon consideration, and for the reasons stated herein and by the Government in its response, Mr. Vazquez's Motion is denied.
The vehicle Mr. Vazquez seeks to recover was forfeited in a DEA administrative forfeiture proceeding. The vehicle was not ordered to be forfeited by the Court, nor is it named in the Government's Bill of Particulars. (Dkts. 45, 58, 74, 158.) Therefore, Federal Rule of Criminal Procedure 41(g) cited by Mr. Vazquez is inapplicable, as Rule 41(g) cannot be used to recover property forfeited in a civil forfeiture proceeding. United States v. Eubanks, 169 F.3d 672, 674 (11th Cir. 1999); United States v. Watkins, 120 F.3d 254, 255 (11th Cir. 1997).
Instead, the Civil Asset Forfeiture Reform Act (“CAFRA”), 18 U.S.C. § 983 et seq., applies to Mr. Vazquez's Motion. “Section 983(e) is the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute.” Mesa Valderrama v. United States, 417 F.3d 1189, 1196 (11th Cir. 2005). The district court lacks jurisdiction to review the merits of administrative or non-judicial forfeitures under CAFRA. Id. Rather, the court's review is “limited to whether the agency followed the proper procedural safeguards.” Id. Thus, the “only issue this court can consider is whether [Mr. Vazquez] received the appropriate notice in sufficient time to contest the agency's action of summarily forfeiting [his property].” Id.
On April 20, 2017, the DEA gave Mr. Vazquez written notice of its seizure of the vehicle and its initiation of administrative forfeiture proceedings by sending him a Notice of Seizure of Property and Initiation of Administrative Forfeiture Proceedings (“Notice”) using United States Postal Service Certified Mail. (Dkt. 186, Ex. A.) See 18 U.S.C. § 983(a); 19 U.S.C. § 1607(a) (requiring notice to interested parties). In addition to informing Mr. Vazquez of the seizure and administrative forfeiture proceedings, the Notice also provided instructions and deadlines for contesting the forfeiture of the vehicle. (Dkt. 186, Ex. A.) Specifically, the Notice expressly explained that to contest the forfeiture of the vehicle in the United States District Court, Mr. Vazquez was required to file a claim with the DEA by May 25, 2017. (Id.) According to the Notice, “a claim is deemed filed on the date received by the agency.” (Id.) Further, the Notice explained that although no specific claim form was required, claim forms were available at www.forfeiture.gov. (Id.) Mr. Vazquez obtained a Seized Asset Claim Form and filed a claim using the Seized Asset Claim Form to contest the forfeiture of the vehicle, but it was denied as untimely. (Dkt. 176 at 2; Dkt. 176, Ex. C, D.) The DEA received Mr. Vazquez's Seized Asset Claim Form on May 26, 2017, after the deadline stated in the Notice. (Dkt. 186, Ex. A at 4.) Consequently, the vehicle was administratively forfeited. See 19 U.S.C. § 1609 (providing that if a claimant fails to file a timely claim, the property is administratively forfeited). The DEA notified Mr. Vazquez in a letter dated June 12, 2017, that his Seized Asset Claim Form was untimely submitted, but “as a matter of discretion, ” the agency would permit him to file a Petition for Remission and/or Mitigation with the DEA within twenty days of his receipt of the June 12, 2017, letter. (Dkt. 186, Ex. A at 5.) Mr. Vazquez could request that the DEA “pardon all or part of the property from the forfeiture” and contest the forfeiture of the vehicle in the Petition for Remission and/or Mitigation. (Dkt. 186, Ex. A.) Mr. Vazquez did not file a Petition for Remission and/or Mitigation.
Under the circumstances, the Court lacks jurisdiction to review the merits of the DEA's administrative forfeiture of the vehicle or to order the Government to return the vehicle to Mr. Vazquez. Mr. Vazquez received adequate notice of the DEA's administrative forfeiture proceedings and had sufficient time to contest the DEA's action summarily forfeiting his property. Mr. Vazquez failed to file a timely claim and failed to file a Petition for Remission and/or Mitigation within the additional time the agency allotted. Thus, the Court lacks jurisdiction. See Matter of Sixty Seven Thousand Four Hundred Seventy Dollars ($67, 470.00), 901 F.2d 1540, 1543 (11th Cir. 1990) (providing that federal courts lack jurisdiction to review the merits of a forfeiture decision made by the DEA).
Moreover, no exceptional circumstances exist warranting the Court's exercise of equitable jurisdiction. See Id. at 1544-45 (explaining considerations for exercising equitable jurisdiction include “whether the petitioner's conduct and the merits of his position require judicial review to prevent manifest injustice”). Mr. Vazquez's conduct demonstrates that he received notice of the forfeiture of the vehicle, but inexplicably failed to comply with the DEA's requirements for contesting the forfeiture. Mr. Vazquez admits that he received the Notice and does not challenge the time allotted to him to file his claim. Further, as stated herein, Mr. Vazquez failed to timely file a claim and failed to file a Petition for Remission and/or Mitigation after receiving additional time to do so. Thus, the Court lacks equitable jurisdiction to order the Government to return the vehicle to Mr. Vazquez.
Accordingly, it is ORDERED that Oscar Jose Barquin Vazquez's Motion to Return Property (Dkt. 176) is DENIED.


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Mary D. LEKAS, M.D., et al., Defendants, Appellees.
Rehearing and Rehearing En Banc Denied July 6, 1992.
Cornelius J. Moynihan, Jr. with whom Sue Zanne Worrell and Peabody & Brown, Providence, R.I., were on brief, for plaintiff, appellant.
W. James McKay, Providence, R.I. (for defendant, appellee Robinson) and John J. Barton, Boston, Mass. (for defendant, appellee Duva) with whom Adler Pollock & Sheehan Inc., Providence, R.I., Taylor, Anderson & Travers, Boston, Mass., Dennis J. McCarten, Hanson, Curran, Parks & Whitman, David W. Carroll, Roberts, Carroll, Feldstein & Peirce, Christopher H. Little, Judith Kapuscinski, Tillinghast, Collins & Graham, William Jestings, and Carroll, Kelly & Murphy, Providence, R.I., were on joint brief, for defendants, appellees.
Before BREYER, Chief Judge, CYR, Circuit Judge, and STAHL,* District Judge.
This is an appeal from a nineteen-day jury trial. Plaintiff-appellant Dr. Tarek H. Elgabri alleged various violations of state and federal antitrust laws, as well as a common law claim of tortious interference with prospective business relationships, against various doctors affiliated at four Rhode Island hospitals. The jury found for defendants on all counts. On appeal, Dr. Elgabri challenges the jury instructions, the order of examination of witnesses, and various evidentiary rulings. We affirm.
Dr. Elgabri is an otolaryngologist practicing in Rhode Island. Otolaryngology is commonly referred to as "ear, nose and throat" (ENT) medicine. He began his residency in otolaryngology at the University of Minnesota. While there, however, he encountered difficulties and was terminated for cause after his first year. He finished his residency at Rhode Island Hospital.
In 1984, after concluding his residency, Dr. Elgabri opened his own practice in Rhode Island. He submitted applications for privileges at various hospitals throughout the state. Hospital privileges allow a doctor to treat and admit patients at a given institution. He received privileges at Notre Dame Hospital, Cranston Hospital, Kent County Memorial Hospital, and Memorial Hospital. Despite numerous attempts over the course of several years, however, he failed to receive privileges at Miriam Hospital, Roger Williams Hospital, Rhode Island Hospital, and St. Joseph Hospital.
On November 9, 1989, Dr. Elgabri brought suit against six doctors: Dr. Mary Lekas, surgeon-in-chief of the otolaryngology department at Rhode Island Hospital; Dr. Steven Issenberg, director of the division of otolaryngology at Roger Williams General Hospital; Dr. Hani Zaki, a medical doctor specializing in otolaryngology who has privileges at the four hospitals that denied Dr. Elgabri privileges; Dr. Mendell Duva, the chief of the otolaryngology department at St. Joseph Hospital; Dr. Mendell Robinson, director of the division of otolaryngology at Miriam Hospital; and Dr. Wexler, the present director of the division of otolaryngology at Roger Williams Hospital.1 Each of the above-named defendant doctors is affiliated at the four hospitals which denied plaintiff privileges.
Dr. Elgabri alleged: 1) defendants violated § 1 of the Sherman Act by agreeing not to deal with him and encouraging others not to deal with him, thereby constituting a group boycott; 2) defendants violated § 2 of the Sherman Act by conspiring to monopolize the provision of ENT medical and surgical services in the relevant market; 3) defendants monopolized the referral of patients to ENT doctors and have maintained their monopoly by denying plaintiff privileges, an essential facility to his practice of medicine; 4) defendants wilfully contracted, combined, and conspired in restraint of trade in violation of Rhode Island antitrust law; and 5) defendants tortiously interfered with plaintiff's prospective business relationships by preventing him from obtaining staff privileges.
Plaintiff raises five issues on appeal: 1) whether the district court erred in instructing the jury as to defendants' motivations; 2) whether the district court erred in its instructions regarding the "essential facilities" claim; 3) whether the court erred in instructing the jury to utilize a "rule of reason" analysis regarding the group boycott claim; 4) whether the district court erred in preventing plaintiff from examining defendants on direct as part of his case-in-chief; and 5) whether the district court erred in various evidentiary rulings made throughout the trial.
If the Defendants in this case acted, even in part, with an intention to promote good patient care to protect the patients and the hospitals from the actions of physicians who are not unquestionably qualified under all professional standards, their actions are lawful under the antitrust laws. If, however, the Defendants used the peer review process for the sole purpose of promoting their own self-interest as competitors, then their actions are not immune from liability.
Plaintiff argues that the instruction improperly required the jury to find for the defendants unless their sole motivation was anti-competitive. Dr. Elgabri also objects to the court's refusal to give a "per se" instruction regarding his "group boycott" claim and challenges the court's refusal to instruct regarding his claim that defendants interfered with his own patients' utilization of various essential hospital facilities.
(Emphasis added). "We have consistently and emphatically held that failure to follow the letter of the rule constitutes a waiver of the objection." Cordero v. De Jesus-Mendez, 867 F.2d 1, 5 (1st Cir.1989); see also Lash v. Cutts, 943 F.2d 147, 152 (1st Cir.1991); Smith v. Massachusetts Instit. of Technology, 877 F.2d 1106, 1109 (1st Cir.), cert. denied, 493 U.S. 965, 110 S.Ct. 406, 107 L.Ed.2d 372 (1989).
THE COURT: Would you please deliver to the Marshal the instruction I read to the jury, the verdict form and the exhibits?
THE CLERK: Alternate No. 1, Susan Dome. Alternate No. 2, Luther Wechestein.
THE COURT: The Court will designate Miss Gramaldi as Foreperson.
THE COURT: Any grievous omissions or corrections right now before the jury goes out, anything that's egregious. Is there anything misleading or something like that?
MR. CARROLL (attorney for defendant Dr. Lekas): No, your honor.
THE COURT: All right, okay, I'm going to send them out and then take exceptions.
I'm going to ask Mr. Wechestein, Miss Dome to remain. The other members of the jury may retire now to commence your deliberations.
THE COURT: I know that I do not have to remind Counsel of the rule in the First Circuit that you don't talk to jurors before or after verdicts without an order of the Court. You're aware of that I am sure.
Now, how about the instructions, what's the objections? Let me get my set of instructions.
MR. MEDEIROS (attorney for plaintiff Dr. Elgabri): Your Honor, I would just make the comments in the order that they are in the instructions, rather than in any particular order of priority.
(Emphasis added). Plaintiff then proceeded to object to the jury instructions at issue on this appeal.
In the absence of compliance with the dictates of Rule 51, we review for plain error. "However, the plain error rule 'should be applied sparingly and only in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice.' " Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.) (quoting Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir.1966)), cert. denied, 488 U.S. 955, 109 S.Ct. 392, 102 L.Ed.2d 381 (1988). In reviewing the instructions given by the district court using this standard, we find no "miscarriage of justice."
Dr. Elgabri argues that his ability to call defendants during his case-in-chief was improperly limited by the trial court. He contends that he has an "unfettered right to call the adverse party on direct examination as part of his case-in-chief and to interrogate by leading questions without restrictions."
As part of his case-in-chief, Dr. Elgabri called defendant Dr. Lekas. After some examination of the witness, the court informed plaintiff during a recess that "it's unfair sometimes for a Plaintiff to prove his case through the mouth of the Defendant." Dr. Elgabri then continued his examination of Dr. Lekas.
After the day's testimony, the court decided to limit plaintiff's examination of defendants in his case-in-chief to subject matter that could not be obtained in any other fashion. The court suggested that plaintiff could prove the essential nature of a defendant's testimony in a proffer prior to the examination of each defendant. Defendants promised that they would take the stand as part of their case-in-chief and the court indicated that plaintiff would have ample opportunity to cross-examine them at that time. The court further indicated that no limits would be placed on the scope of cross-examination. Plaintiff thereafter made no further proffers and vigorously cross-examined the other defendants during their presentations.
The mode and order of questioning thus lies in the trial court's discretion. See United States v. Nivica, 887 F.2d 1110, 1120 (1st Cir.1989), cert. denied, 494 U.S. 1005, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990). We do not disturb decisions regarding courtroom management unless these decisions amount to an abuse of discretion that prejudices appellant's case. Loinaz v. EG & G, Inc., 910 F.2d 1, 6 (1st Cir.1990); see also 3 Jack B. Weinberg & Margaret A. Berger, Weinstein's Evidence 611 at 611-17 (1991) ("Once the judge exercises his power, his decision is virtually immune to attack and will be overturned only in the rare case where the appellate court finds a clear abuse of discretion that seriously damaged a party's right to a fair trial.").
Dr. Elgabri argues that Fed.R.Evid. 611(c), which allows for leading questions of adverse parties on direct examination, requires the court to allow direct examination of defendants in his case-in-chief.3 Rule 611(c) does not, however, impose such a requirement. Rather, Rule 611(c) only requires that the court allow a plaintiff who calls an adverse party on direct to use leading questions in his examination because the witness is presumed hostile. See Fed.R.Evid. 611(c), advisory committee's note; see also 3 Weinstein's Evidence 611 at 611-82 to 611-83.
In this case, the court reasonably held that plaintiff's examination of defendants should be limited in the described manner in order to make the presentation of evidence effective and to avoid needless consumption of time. Further, plaintiff does not argue that he failed to obtain evidence as a result of the district court's limiting of his presentation of his case; he only objects to the order of presentation. We therefore find no reversible error.
Dr. Elgabri challenges four evidentiary rulings of the district court. He contends that the court erred in refusing to admit evidence that defendant Dr. Issenberg was unable to perform a tracheotomy. Plaintiff also challenges the court's exclusion of a letter from the New England Otolaryngological Society notifying Dr. Elgabri that his presentation was "the winner among those presented by residents from the other New England teaching hospitals." He further contests the court's refusal to admit a letter of recommendation written by Mrs. Eleanor Edmonds, an operating room nurse at Rhode Island Hospital and director of operating room services. Finally Dr. Elgabri argues that the court improperly admitted into evidence segments of testimony from a Minnesota state case he had previously instituted.
Plaintiff attempted to ask defendant Dr. Robinson on cross-examination whether he was aware that Dr. Issenberg was unable to perform a tracheotomy.4 In a conference at the bench, the parties disputed the circumstances surrounding Dr. Issenberg's "refusal" to perform a tracheotomy in the emergency room. Dr. Issenberg's counsel explained that his client had not refused or been unable to perform the procedure, but rather that he had considered it appropriate that a general surgeon perform the procedure. Counsel for Dr. Elgabri argued that there was no general surgeon on duty at the time and that Dr. Issenberg's "refusal" constituted negligence. The court observed that Dr. Issenberg's alleged negligence during the incident in the emergency room had little to do with the issues at trial. The court then decided that the testimony would be "getting a long way from where we're going," and therefore sustained defendants' objection.
Rule 403 of the Federal Rules of Evidence requires a court to balance the relevance of evidence against the substantial risk of prejudice and the cumulative nature of the evidence. Miller v. Town of Hull, 878 F.2d 523, 529 (1st Cir.1989). A decision to exclude evidence under Rule 403 is within the discretion of the trial court. We will review such a ruling only for abuse of discretion. United States v. Rodriguez Cortes, 949 F.2d 532, 541 (1st Cir.1991).
We find no abuse of discretion. The court reasonably found that the evidence, though marginally relevant, was only tangentially related to the issue at hand. The court determined that the evidence would only confuse the issues which were at the heart of the litigation. It was well within the court's discretion to exclude the evidence for that reason.
As noted above, Dr. Elgabri attempted to admit a letter from the New England Otolaryngological Society notifying him that his case presentation was the winner among presentations made by residents from New England teaching hospitals. The court excluded it as hearsay. Plaintiff argues that it should have been admitted under the business record exception to the hearsay rule.5 Fed.R.Evid. 803(6).
We briefly address Dr. Elgabri's remaining claims. Dr. Elgabri argues that the court improperly excluded Nurse Edmond's letter. He claims that the letter had been authenticated as part of his application file at Roger Williams Hospital. The letter, however, was properly excluded as inadmissible hearsay not within any exception. Fed.R.Evid. 802. Even if we assume that the letter was part of his application file, Dr. Elgabri failed to produce a qualified witness or custodian of records to authenticate the letter as a business record. See Belber, 905 F.2d at 552.
Finally, Dr. Elgabri states without elaboration that testimony from a Minnesota state court litigation instituted by him was improperly admitted. It is a settled appellate rule, however, "that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990). Finding that Dr. Elgabri failed to develop any argument after raising this issue, we deem this claim waived.
For all of the above reasons, we affirm the district court's challenged rulings. Affirmed.
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls ... an adverse party, ... interrogation may be by leading questions.

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