Friday, January 9, 2009
Stephen Colbert (pictured before he discovered that he is a Winter) has done the world of contracts a tremendous favor by mentioning contracts on his television show, The Colbert Report, which is fast becoming America's favorite source for fake news commentary. Unfortunately, much of what he has to say about contracts is (dare I say it?) wrong! And this is the first time that I can recall that Stephen has been wrong about anything. Well, I'm a loyal viewer, but still, I have to stand up for what I believe in -- or teach -- or something like that. So, here we go.
The episode in question can be found here. About six-minutes into the episode, right after the bit about reports that Sanjay Gupta might become Surgeon General and change the shape of our food pyramid to reflect his own eating habits, comes a report on the Obama transition. According to Colbert, the Obama website says "We need to update the social contract." Colbert objects in the following terms:
I have negotiated a great social contract for myself. I'm famous, I'm rich, and I've got dental. . . [*ching*]. Besides, the main point of a contract is that you can't change it. That's why I had to fake my own death to get out of my endorsement deal with "GOOD- on-Ya" Australian cologne: "Splash It 'Down Under'" . . . . I was starting to attract dingoes.
There are many problems with this statement. First, it's not clear that the social contract is really a contract at all. Second, Restatement s. 89 permits the modification of an existing contract without additional consideration in circumstances that might apply to the social contract, if it is a contract. The UCC's s. 2-209 is more permissive still on the subject of modifications. Stephen, it's like you've never heard of Karl Llewellyn! Third, contracts doctrine provides many excuses other than faking one's own death to permit celebrities to get out of their endorsements. Most celebrities choose the DUI route, but there are plenty of other activities that can trigger a morals clause. Finally, faking one's own death is rarely effective when one announces having done so on national television -- even if it is cable.
Stephen, obviously your show needs a writer with some genuine legal expertise. You know where to reach me. Just check the caller ID from when I called you at 1-800-OOPSJEW last Yom Kippur.