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.
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:
I. Formations A. Offer 1. An offer is a manifestation of an intent to be bound. 2. Objective manifestation. What would a reasonable person believe? 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? B. Consideration 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 inducement. 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. C. Acceptance 1. Generally, words like “I accept,” evidence intent to accept. 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 too uncertain. E. Defenses against formation. (If this was true at the time of formation, no contract was entered into) 1. Duress 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 enforceable. 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 of compensation 2. Four questions a. Was a benefit conferred? b. Was there appreciation or knowledge of the benefit? c. Did the party have the opportunity to refuse the benefit? d. Did the acting party have reason to expect repayment? 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 restitution 3. The Princess Bride. The Six Fingered Man tells Domingo Montoya he will give him only what he believes the sword is worth. III. Interpretation A. Objective. What a reasonable person would believe. Not subjective. 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. IV. Performance 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 performance 1. The Little Mermaid. Ariel turning mostly into krill before Ursula stopped her should have fulfilled her obligation 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 left. 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. 2. Illegality a. A contract to perform something illegal is not enforceable. 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. 3. Unconscionability 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. 4. Mistake a. a party erroneously believes a certain fact is true prior to entering into the contract. 5. Misrepresentation a. a false, material statement knowingly made by one party with the intent to induce the other into the agreement. 6. Impracticability a. performance becomes unfeasibly difficult 7. Impossibility a. a change in circumstances regarding an underlying assumption of the contract which makes performance impossible 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 price. 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 third party. 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 B. Assignment 1. the transfer of rights under a contract to a third party. 2. valid as long as the person receiving the new contract rights has notice. C. Novation 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 born child. 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?