I’m a nerd. This should surprise no one. I love fantasy, and I love learning. Especially learning the law. It has been my dream for some time to create a blog explaining legal concepts using pop culture references (99 Problems totally explains the automobile exception to the 4th Amendment’s warrant requirement), but I haven’t had the energy.
A friend of mine is starting law school in the fall, and I am just so excited for her! I know I hold the minority opinion, but I really enjoyed law school. What can I say, I love learning. I met a lot of great people, did a lot of exploring, and spent a lot of time in the library while this guy looked down on me.
I only regret that I have but one life to lose to my law degree. Notice the Mardi Gras beads. Nathan Hale was a party animal.
Photo from wikimedia commons
One of the great people I met was this friend. What? I met a great person at law school who will be starting law school in the fall? Yes. The great people I met were not law students (well, maybe some of them were). I hung out with a lot of undergrads and med students.
One class I did not like in law school was Contracts I. My professor was not so great. I did well in the class, but I’m convinced my success was due not to him, but to Harry Potter and my sexcapades. And so, I made a Contracts I outline explaining issues with contracts through pop culture (and my weird sexcapades) dedicated to this friend. It’s not quite done (I’m still looking for some nerdy examples to explain some things) but I’m just so excited that I had to share! And maybe you can help me finish it. Without further ado, everything you ever wanted to know about contracts as explained by JK Rowling and other writers. And a few for realsies case law references too:
1. An offer is a manifestation of an intent to be bound.
2. Objective manifestation. What would a reasonable
3. Harry Potter and the Deathly Hallows. Harry, Ron,
and Hermione offered the Sword of Gryffindor to
Griphook. In consideration, Griphook would help them
break into Gringotts. Harry et al. had the subjective
intent was not to give Griphook the sword until they
were done with it. How would a reasonable person
interpret the term of this contract?
4. Is an advertisement an offer? Usually no.
a. Leonard v. Pepsi Co., 210 F.3d 88 (2d Cir. 2000).
For an ad to be an offer, it must use specific
language (like “first come, first served”) or
request a particular performance. In Leonard, a
reasonable person would have understood that the
ad was a joke.
b. Harry Potter and the Order of the Phoenix.
Fred and George offered a discount to students
who would use their products to get rid of
Umbridge. Was it reasonable to assume that this
was a binding offer?
1. An exchange or payment that makes the offer a
contract rather than a promise.
2. Can be a benefit to the offeror (I’ll give you my
car for $100. $100 is the consideration) or a
detriment or surrender of a right to the offeree
(I’ll give you $100 if you quit smoking. Quitting
smoking is the consideration)
3. Consideration must be bargained for. A contract is
a bargained for exchange. Offer and consideration
must bear the reciprocal relationship of motive and
4. Harry Potter and the Goblet of Fire. Harry gave Fred
and George his Triwizard money and made them promise
to use the money to buy Ron new dress robes. Not
valid consideration because Harry would have given
them the money anyway. No reciprocal relationship.
1. Generally, words like “I accept,” evidence intent to
2. In a unilateral contract, the contract is formed
when one side performs. Lily Potter offered her life
in exchange for Harry’s. Contract was formed when
Voldemort accepted through his performance.
D. Terms of the contract
1. The terms of the contract must be reasonably certain
in its essential terms
2. Once Upon a Time. Mr. Gold and Emma entered into a
contract to allow Ashley to keep her baby (Ashley
had promised to give her baby to Mr. Gold in exchange
for money). Ashley would be allowed to keep the baby,
and Emma would have to perform a favor for Mr. Gold.
The contract would likely fail because “favor” it
E. Defenses against formation. (If this was true at the time
of formation, no contract was entered into)
a. A contract made under duress—violence, threat,
or pressure—is not enforceable.
b. The Big Bang Theory. Sheldon forced Leonard
into a new roommate agreement under threatening
to tell Priya’s parents about Leonard and Priya.
It is arguable that the contract would not be
2. Lack of capacity
a. law forbids a person from entering into the
contract due to age or mental illness
b. Harry Potter and the Goblet of Fire. My problem
with the Goblet being a "binding magical
contract" aside, Harry was underage and probably
should not have been bound
3. Undue influence
a. one person takes advantage of his position of
power over the other
b. Once Upon a Time. Probably every contract
Rumplestiltskin entered into. He's the freaking
Dark One. Damn right he wields undue influence!
II. Not real contracts
A. Quasi-contract and unjust enrichment
1. A benefit given with the expectation of some sort
2. Four questions
a. Was a benefit conferred?
b. Was there appreciation or knowledge of the
c. Did the party have the opportunity to refuse
d. Did the acting party have reason to expect
3. My friends and I called one other law student "unjust
enrichment" because when I hooked up with him, he got
an orgasm and I didn't
B. Quantum meruit--what one has earned.
1. Payment for the reasonable value of services rendered.
2. Three elements:
a. the defendant was given a benefit
b. at the plaintiff’s expense
c. good conscious require that the defendant makes
3. The Princess Bride. The Six Fingered Man tells
Domingo Montoya he will give him only what he
believes the sword is worth.
A. Objective. What a reasonable person would believe. Not
B. The role of custom in the industry the contract relates to.
1. Smith v. Boyd, 553 A.2d 131 (R.I. 1989). “We shall
consider, among other things, the practice of the
trade or profession, the prior practice between the
parties, whether the written contract was to be
drawn up by persons other than the parties, and
statements made during the negotiations.” In real
estate, contract is formed at closing.
2. Harry Potter and the Half-Blood Prince. The
Unbreakable Vow. There was no consideration, but
the custom was that the parties intended to be bound.
C. Contracts should be interpreted against the drafter.
1. U.S. v. Seckinger, 397 U.S. 203 (1970) (writing “the
general maxim that a contract should be construed most
strongly against the drafter.”)
2. The Big Bang Theory. Priya interprets an ambiguity in
roommate agreement against Sheldon.
A. In a unilateral contract, performance is acceptance. Lily
Potter and Voldemort again. Lily said “kill me instead of
Harry,” and he did. Thus contract formed.
B. Substantial performance. Partial performance of
consideration may fully satisfy the contract if there was
no ill will by the actor in the failure to complete
1. The Little Mermaid. Ariel turning mostly into krill
before Ursula stopped her should have fulfilled her
2. Mardi Gras. I was in the French Quarter, and I
wanted a rubber chicken! So this guy had a whole
bunch, and I asked him for one. He said ok, but I
had to kiss his friend (apparently this is some Mardi
Gras game). I demanded payment upfront. I leaned for
the kiss, and someone else said “wait, let me get a
camera,” and the guy pulled back. So I said “sorry,
I substantially performed,” took the chicken, and
C. Breach. Non-performance by one party. Breach may be
excused in some circumstances.
1. Frustration of Purpose
a. An unforeseen event occurs which undermines a
party's purpose for entering into the contract.
Both parties must know this underlying purpose
before entering into the contract.
b. Once Upon a Time. Regina and Jefferson enter
into a contract. Jefferson will get his hat to
work once more to open a portal into the
Enchanted Forest so Regina can get the poisoned
apple to give to Emma. In exchange, Regina will
rewrite Jefferson’s daughter’s memory so they
can be together. Jefferson performs and gives
the apple to Regina. Regina bakes it into a
turnover and gives it to Emma, but Henry eats
it. When Jefferson later goes to Regina and
asks her to make good on the contract, she says
no because Emma was supposed to eat the turnover,
not Henry. She tried to argue that her purpose
for entering into the contract (to poison Emma)
was frustrated. I think this is a poor argument,
since Jefferson’s performance was completed when
he delivered the apple. It wasn’t his fault that
Regina messed up.
a. A contract to perform something illegal is not
b. Pirates of the Caribbean: Curse of the Black
Pearl. Will gets Jack free from jail, Jack will
bring Will to the Black Pearl. Jack will give
Barbossa 15% of his plunder and Barbossa gets to
introduce himself as “Commodore.” A contract to
perform something illegal (busting Jack from
jail, piracy) is not enforceable.
a. Terms excessively unfair to one party.
b. Shrek—Happily Forever After. Shrek gives
Rumpelstiltskin a day of his life so he can be an
ogre for a day. But the day Rumpel takes is the
day Shrek was born, so Shrek dies after the
contract is fulfilled.
a. a party erroneously believes a certain fact is
true prior to entering into the contract.
a. a false, material statement knowingly made by one
party with the intent to induce the other into
a. performance becomes unfeasibly difficult
a. a change in circumstances regarding an underlying
assumption of the contract which makes
8. Unclean hands
a. The party that has performed has acted unethically
or in bad faith and so is not entitled to a remedy
by the court.
b. Once Upon a Time. PRETTY MUCH EVERY CONTRACT
RUMPELSTILTSKIN ENTERS INTO! Though he does give
fair warning (ad nauseam) that all magic has a
c. Once Upon a Time. Regina and Jefferson enter into
a contract whereby he will take her via his hat
through the lookingglass to retrieve something
and she will give his daughter anything she wants.
They go through the lookingglass, but Regina traps
him there, as was her intent from the beginning.
V. Third Parties
A. Beneficiaries—a person not a party to the contract who
nonetheless receives a benefit from it.
1. Intended beneficiary
a. Original parties agree to provide consideration to
the third party. There is an intent to benefit the
b. Intended beneficiary can sue for breach
c. Harry Potter and the Goblet of Fire. Assuming that
Fred and George buying new dress robes for Ron was
valid consideration, then Ron would have been able
to sue to enforce the contract between Fred and
George and Harry.
d. Night Watch. Anton caught Alisa doing a 3rd or 4th
degree intervention. In exchange for not punishing
her, Zabulon told Anton he could do a 2nd degree
intervention. Alisa was the intended beneficiary
of the contract between Zabulon and Anton.
2. Incidental beneficiary
a. Someone who stands to benefit though that was not
the intent of either contracting party.
b. Does not have the right to sue for breach
1. the transfer of rights under a contract to a third
2. valid as long as the person receiving the new
contract rights has notice.
1. Replacing with an obligation under the contract
with a new obligation
a. Once Upon a Time. The contract between Cora
and Rumplestiltskin originally was to give
Rumple her first born child. The contract was
changed so that she would give him their first
2. Replacing one party with a new party
a. Once Upon a Time. To allow Ashley to keep her
baby after she had agreed to give it to Mr. Gold,
Emma agreed to perform a favor for Mr. Gold.
Replaces the obligation and a party.
3. Valid only with the consent of all parties
a. The Little Mermaid. Agreement between King Triton
and Ursula was not a novation of the original
contract between Ariel and Ursula because Ariel
did not consent.
Any thoughts on this? Any suggestions to help me fill in the blanks?