ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Monday, June 20, 2011

Contracts Law and the Ethicist

The New York Times Magazine's "The Ethicist" column is occasionally the source of blog fodder.  This week, both entires in the column raise potential contracts issue.  The Times' Ethicist is now Ariel Kaminer, and she does a fine job of not confusing legal and ethical rules.  Still, in these two cases, it is interesting to ponder whether law and ethics do and should correspond.

The first letter to which Kaminer responds is from a patient who is required by a physician to wait 30 minutes after receiving an injection before leaving the clinic.  This requirement is the product of new guidelines, apparently related to concerns over a potentially fatal side-effect of the injection that necessitates a ready dose of epinephrine.  The letter-writer thinks the doctor is being coercive by enforcing the new guidelines.  The situation is basically "stay here for 30 minutes or you cannot receive this injection that you need."  Kaminer has no difficulty determining that it is not unethical for the doctor to enforce the guidelines, as the doctor is also bound by the same guideline whether or not he sees the need for it.  

Times The law would undoubtedly concur in this case, as being required to wait in a clinic for 30 minutes after receiving a treatment for a chronic medical condition does not rise to the legally cognizable level of coercion.  But it is interesting to tweak the hypo a bit.  One obvious alternative comes to mind: Imagine a doctor who is required by her legislature to inform her patients of the psychological consequences to the mother of abortion.  Imagine that the doctor, having read all the relevant studies, does not believe that there are demonstrable psychological consequences or that those consequences are far less significant than the psychological harms associated with, for example, becoming a mother at age 15.  Assuming a paramount ethical duty for a doctor to give sound medical advice, it seems like the tension between ethics and law is quite clear in this case.  It would be interesting to imagine actual situations that doctors could face where the relationship between legal and ethical requirements would be more ambiguous.

The second letter is from a tenant/roommate who wonders whether s/he can withhold rent after being informed that her landlord/roommate has decided to default on the mortgage.  Kaminer says the answer is probably no.  The landlord's decision to breach his agreement with the lender has no bearing on the separate agreement between landlord and tenant.  So far, so good on the contracts side as well.  Kaminer then explores the possibility that the purpose of the rent was to defray the costs of the mortgage, and if that were the sole purpose of the rent, the tenant might be off the hook as an ethical matter.  However, Kaminer concludes that there are likely other costs associated with the residence to which the landlord remains subject and hence the ethical duty to pay rent continues.

Here again, the contracts analysis and the ethical analysis seem to correspond.  The agreement in question is described an "informal."  If there were some express, formal arrangement linking the payment or rent to the mortgage obligation, one might have an argument that the purpose of the agreement had been frustrated by the landlord's decision to stop making mortgage payments.  But given that the arrangement was open-ended, the landlord would have equal grounds to evict the tenant.  The landlord might have reasoned thus: I took your rent to help defray the costs of the mortgage.  Now I have no mortgage, and I just prefer to have my space, so get out.  

Of course, evictions do not occur at the snap of the fingers.  However, from a legal perspective, if the consideration was tied to the existence of a mortgage, and the mortgage ceased to exist, it is hard to see why the result should be a free room rather than an empty one.


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