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Friday, May 23, 2014

Fargo: A TV Series About an Implied Contract

Martin_FreemanThe event that fuels the first-season plot of the new F/X television series Fargo is a conversation in an emergency room waiting room.  Lester Nygaard (Martin Freeman, left) has just been assaulted by Sam Hess, who used to bully him mercilessly in high school.  Hess intimidates and humiliates Lester in front of Hess's comically neanderthal sons.  Although Hess never actually hits Lester, the result is still a broken nose.  

While waiting for someone to attend to his injury, Lester has a conversation with Lorne Malvo (Billy Bob Thornton, Right), who was injured when his car hit a deer and careened off the highway.  Once the car came to rest in a snow-covered field, a man wearing only boxer shorts, who for some reason had been in the trunk of Malvo's car, jumped out and ran for the cover of the nearby woods.  That's pretty much all we know about Malvo when he and Lester have their conversation.

BillyBobThorntonMalvo manages to learn from Lester what had happened to him and that the man responsible for his injuries is named Hess.  Malvo suggests that Lester ought to kill Hess, but Lester is not that kind of person (or at least not yet), so he dismisses the idea.  Malvo offers to kill Hess for Lester.  Lester just gives him that look of incredulity that has been a staple of Martin Freeman's wonderful career.  Malvo insists that Lester say either yes or no, but  a nurse interrupts the conversation to take Lester in for treatment, and Lester says nothing.

Spoiler alert: you may not want to read below the jump if you have not watched the show (and intend to do so) as a few plot details are revealed:

Malvo treats Lester's silence as consent.  This is inappropriate from the perspective of contracts law but jumping to conclusions about contract formation is not the worst thing Malvo does by a longshot.  Moreover, as Lester offers nothing in exchange for Malvo's services, it does not seem that we are in the realm of contracts at all.

And yet, after Lester does something with a ballpeen hammer that nobody, including him, thought him capable of doing, his first call is to Malvo.  "Lester, have you been a naughty boy?"  Malvo asks.  The two do seem to think they have some sort of relationship, and the consideration may just be that Malvo enjoys killing people as well as having plenty of ammunition that he can use to torture his latest mark.  If the initial conversation did not give rise to an implied contract because of Lester's silence, the phone call might constitute a form of ratification.  

As a non-contractual aside, I would like to note that this week's episode was a HUGE disappointment.  There were plot twists that overcame my ability to suspend disbelief, and there were two scenes in which the violence and cruelty were over the top, even by my standards, and I have watched and enjoyed more extremely violent tv series than I care to mention.  Perhaps there is a bit of a contract issue here.  We thought we had an agreement with the makers of Fargo.  We thought we could look forward to watching the best television series currently airing every Tuesday evening.  We recommended the show to our friends, even to friends who are not that into violent tv shows.  It may be that the creators can pull back from this week's jump-the-shark episode (as did the Breaking Bad folks after the absolutely dreadful episode about the fly), but my faith is shaken.

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