December 08, 2008
Ebenezer Scrooge on Contract Formation
I consulted several print and on-line versions of Dickens's A Christmas Carol and did not find the following dialogue, nor does it appear in all of the film versions of the tale. So, I'll attribute it to the Roger O. Hirson's screenplay for the 1984 Hallmark Hall of Fame version of A Christmas Carol, starring the late, great George C. Scott.
Ebenezer Scrooge, delayed on his way to the mercantile exchange by his nephew, Fred Holywell's, unwelcome visit to Scrooge & Marley, arrives shortly before the exchange is to close, whereupon he encounters Messrs. Tipton, Pemberton, and Forbush (none of whom appear in Dickens's text), with whom Scrooge has been negotiating the sale of a quantity of corn. What follows illustrates the then-prevailing common law rule that an offer made in a face-to-face conversation expires at the end of the conversation unless the offeror indicates otherwise.
Tipton: Ah, Ebenezer. We were afraid you wouldn't come.
Pemberton: It's almost closing, sir.
Scrooge: Well, I'm here, aren't I?
Forbush: I said you'd be here. [To Tipton and Pemberton] Didn't I say Ebenezer Scrooge would be here? [To Scrooge] I knew you'd change your mind.
Scrooge: You're right, I have changed my mind.
Tipton: Oh, good. Then you'll take our bid?
Scrooge: The price has gone up.
Pemberton: Gone up? But that's not possible!
Scrooge: If you want my corn, gentlemen, you must meet my quote ... plus five percent for the delay.
Forbush: That's outrageous, Scrooge. You'll be left with a warehouse stuffed with corn!
Scrooge: Well, that's my affair, isn't it?
Tipton: But if we pay your price, our bread will be dearer. The poor will suffer.
Scrooge: Buy the corn someplace else. Good day, sir.
Pemberton: Scrooge, a moment. We'll take your corn ... at the price you quoted yesterday.
Scrooge: Too late. If you wait until tomorrow, it'll cost you another five percent.
Forbush: Damn it, Scrooge, it's not fair!
Scrooge: No, but it's business. I'll give you a moment to make up your minds.
[The three bidders confer.]
Tipton: All right, Scrooge, done and done!
Scrooge: Very good, gentlemen. Now, make sure that the draft for the entire amount of this transaction is deposited with my clerk. I don't ship until I have the cash in hand.
[Keith A. Rowley]
December 07, 2008
Australia: A Movie About Contract Law
A few days ago, in a fit of holiday and pre-exam frivolity, I went to see Australia, the latest Baz Luhrmann – Nicole Kidman collaboration. It’s quite different from Moulin Rouge (no singing to speak of), yet it’s still a similar kind of oddball high-kinetic vision, and a lot of fun. The one flaw of the movie (okay, other than the fact that it lacks Ewan McGregor) is that it tries to weave too many strands together – a sense of the beauty of the outback, cattle ranching, business competition, racism, aboriginal rights, WWII, mysticism, a love story. Too much for one movie.
Aside from all these themes, I perceived that Baz Luhrmann wanted to make a movie about contract law. When Lady Sarah (Kidman) arrives in Australia, the dominating cattle baron, King Carney, offers her a lowball price for her cattle ranch. If she can succeed in driving her cattle to the Port of Darwin, she will win the contract for supply of the army, thereby undercutting Carney’s monopoly. The climax of the first part of the movie (the first movie?) involves whether the army officer will sign Carney’s proffered contract before Lady Sarah rides into town with the cattle.
Unfortunately, the army officer does sign the contract before Lady Sarah arrives. But then the officer tells Lady Sarah that the contract is only binding upon delivery of the cattle to the ship. A race then ensues to load the cattle first. Who knew that the UCC could be so much fun?
So, there you have it. The epic of Australia is really a movie about contract law.
[Miriam Cherry / Cross Posted at Concurring Opinions]
October 31, 2008
Brown on Halloween, Promises & Signed Documents
Halloween time always reminds me of the Peanuts Special, It's The Great Pumpkin Charlie Brown. Of course, my thoughts turn to two wise philosophers, admirable contract scholars and lovable losers: Charlie Brown and Linus.
For example, in light of the approaching election day, don't forget Linus' pertinent reminder:
"I've learned there are three things you don't discuss with people: religion, politics and the Great Pumpkin."
Further, the following familiar exchange between Charlie Brown and Lucy (also captured in the clip below) provokes normative questions about the tension between formal legal requirements and fundamental fairness :
Lucy Van Pelt: Say Charlie Brown, I’ve got a football. How about practicing a few placekicks. I’ll hold the ball and you come running and kick it.
Charlie Brown: Oh brother. I don’t mind your dishonesty half as much as I mind your opinion of me. You must think I’m stupid.
Lucy: Oh come on Charlie Brown.
Lucy: I’ll hold it steady.
Charlie: You just want me to come running up to kick that ball so you can pull it away and see me land flat on my back and kill myself.
Lucy: This time you can trust me. See, here’s a signed document testifying that I promise not to pull it away.
Charlie: It is signed! It’s a signed document! I guess if you have a signed document in your possession you can’t go wrong. This year I’m really going to kick that football.
[Charlie runs and goes to kick the ball and, of course, Lucy pulls it away, causing Charlie to fall.]
Lucy: Peculiar thing about this document, it was never notarized.
Poor Charlie. He is persistent at trick-or-treating, and all he can say is "I got a rock!" I suppose that's better than a mere peppercorn. Happy Halloween!
[Meredith R. Miller]
October 13, 2008
Contracts Limerick of the Week: Sullivan v. O'Connor
Sullivan v. O'Connor involves a promise by a doctor to provide the plaintiff with a nose that "would enhance her beauty and improve her appearance." However, after three surgeries, the plaintiff emerged with a nose that was disfigured and deformed (as the photo to the left illustrates). She also experienced both mental and physical pain. Plaintiff sued both for medica malpractice and for breach of contract. The jury found for the doctor on the malpractice claim but for plaintiff on the breach of contract claim. She was awarded damages in the amount of $13,500.
This verdict was upheld on appeal, with the Massachusetts Supreme Court ruling that plaintiff was entitled to recover her out-of-pocket expenses ($622.65), for the worsening of her condition and for pain, suffering and mental distress involved in the third operation. Ducking the difficulty of reconciling such damages with contracts doctrine, the court found such harms compensable as either expectancy or reliance damages.
To be honest, I never much cared for this case or its hairy-handed twin, Hawkins v. McGee. They have, for me, the musty scent of a now abandoned pedagogy:
Still, even if legal pedagogy has moved on, the cases are with us -- and yes, they do raise interesting damages issues. Accordingly, a Limerick for Sullivan.
Sullivan v. O'Connor
Assessing a botched operation
Requires tort-like harm calculation.
Suffering and pain
Invade contracts domain
Both as reliance and expectation.
October 06, 2008
A Motivated Employee
Jack: Have you ever thought about my responsibilities?
Wendy: Oh Jack, what are you talking about?
Jack Torrance: Have you ever had a SINGLE MOMENT'S THOUGHT about my responsibilities? Have you ever thought, for a single solitary moment about my responsibilities to my employers? Has it ever occurred to you that I have agreed to look after the OVERLOOK Hotel until May the FIRST. Does it MATTER TO YOU AT ALL that the OWNERS have placed their COMPLETE CONFIDENCE and TRUST in me, and that I have signed a letter of agreement, a CONTRACT, in which I have accepted that RESPONSIBILITY? Do you have the SLIGHTEST IDEA, what a MORAL AND ETHICAL PRINCIPLE IS, DO YOU? Has it ever occurred to you what would happen to my future, if I were to fail to live up to my responsibilities? Has it ever occurred to you? HAS IT?
Wendy: [swings the bat] Stay away from me!
September 25, 2008
Letterman Resorts to Self Help
On Wednesday, John McCain announced that he was suspending his Presidential campaign so that he can help fix the current financial crisis. As a result, he had to back out of his promised appearance on the "Late Show with David Letterman".
According to the Los Angeles Times, McCain told Letterman that he had to cancel his appearance on Letterman's show so that he could rush to the airport and head to Washington. However, during the taping of his show, Letterman learned that McCain was not only still in New York, he was a few blocks away preparing to be interviewed by Katie Couric.
Letterman seems to viewed McCain's conduct as an actionable breach of contract. Rather than filing a complaint, he attempted to extract damages from the politician with the comedic tools at hand: The L.A. Times reports Letterman's commentary on the live feed that the "Late Show" played of McCain getting ready for his interview with Couric.
“He doesn’t seem to be racing to the airport, does he?” Letterman said, shouting at the television monitor: “Hey, John, I got a question! You need a ride to the airport?”
Letterman didn't stop there. He devoted much of the show to berating McCain for jilting him and for not sending Vice Presidential nominee, Sarah
Palin in his stead.
Apparently, Letterman is not the type to just let things go. According to the Los Angeles Times, Letterman devoted considerable air time to savaging the McCain campaign yet again Thursday night.
September 22, 2008
Joy at Frank's Return
Regulars to this blog will notice the return of a number of familiar by-lines. You will be seeing a lot more of Keith and Miriam. And I am especially delighted to have Frank back posting regularly on this blog. Frank was the one who invited me to join the blog, and it's been a terrific experience, made much easier by all the work that Frank and my co-bloggers did to set up the blog before I came on board.
Words cannot describe my happiness. So if you see me walking around with a stupid grin on my face, this is the scene playing out endlessly in my head:
September 09, 2008
Business Associations Limerick of the Week: Shlensky v. Wrigley
Last week's Limerick addressed the famous dictum of Dodge v. Ford Motor Corp., in which the court reminded Henry Ford that his primary goal ought to be shareholder wealth maximization. In discussing that case, we cautioned that there is more to business associations than shareholders. Rather, as Lynn Stout properly emphasizes, boards of directors owe duties to multiple stakeholders. One case that illustrates this principle is the Barlow case, discussed on this blog here. An even better illustration is Shlensky v. Wrigley.
Shlensky tried to get Wrigley, the owner of the Cubs, to install lights at Wrigley field (pictured) so that the Cubs could play before larger crowds at night games. Shlensky faced a problem. How could he possibly prove that the Cubs could attract more spectators to night games than they could to day games? After all, that would require some comparable sports team that plays in a similar city, and how was he supposed to find another major league baseball team that played in a city like Chicago?
What? White Sox? Oh, yeah. Turns out, Shlensky proferred evidence that people were more inclined to go to Sox games at night than they were to go to Cubs games during the day when the two teams played on the same day. Wrigley responded not with a challenge to Shlensky's economic analysis but with concerns about the effect of night baseball on the Wrigleyville neighborhood and with a lovely little bit of arcane ideology: "Baseball is a daytime sport." As Neo (Keanu Reeves) might say, "Woh!"
That's pretty far from an exercise of reasonable business judgment. By the way, on the clip shown above, Neo's "Woh!" is presented as if it were a response to Trinity's (Carrie-Ann Moss) fleetness (which in our context represents how quickly your head would spin if you tried to construe Wrigley's argument as an exercise of reasoned business judgment). In fact, of course, it was a response to Morpheus's (Laurence Fishburne) leaping abilities (which in our context would represent the leap of faith it would take to get from Wrigley's non-exercise of business judgment to a dismissal of the suit based on the business judgment rule).
The court accommodated Wrigley by hypothesizing what a decent basis for refusing to install lights at Wrigley Field might look like, and on that basis, Shlensky's complaint was dismissed.
Shlensky v. Wrigley
As Wrigley explained to the court,
Pro ball is a daytime sport.
Night ball you can see
Down at Comiskey
Where the teams out for profit cavort.
May 27, 2008
Idiosyncratic Terms a la Monty Python
Groom: We want to buy a bed, please.
Mr. Lambert: Oh, certainly. I'll get someone to attend to you. Mr. Verity!
Mr. Verity: Can I help you, sir?
Groom: Ah, yes. We'd like to buy a bed ... a double bed ... about fifty pounds?
Verity: Oh, no, I'm afraid not, sir. Our cheapest bed is eight hundred pounds, sir.
Groom: Eight hundred pounds!
Lambert: Perhaps I should have explained: Mr. Verity does tend to exaggerate; so, every figure he gives you will be ten times too high. Otherwise he's perfectly all right.
Groom: Oh, I see. So your cheapest bed then is eighty pounds?
Verity: Eight hundred pounds, yes, sir.
Groom: And how wide is it?
Verity: The width is sixty feet wide.
Groom: (Politely whispering to his wife) Six foot wide. And the length?
Verity: The length is ... Lambert, what is the length of the Comfydown Majorette?
Lambert: Two foot long.
Groom: Two foot long?
Verity: Ah, yes, you have to remember, of course, to multiply everything Mr. Lambert says by three. It's nothing he can help, you understand. Apart from that he's perfectly all right.
Groom: I see....
Verity: But, it does mean that when he says a bed is two foot wide, it is in fact sixty foot wide.
Groom: Oh, yes, I see.
Verity: And that's not counting the mattress.
Groom: Oh, how much is that?
Verity: Mr. Lambert will be able to help you there. Lambert, will you show these twenty good people the dog kennels, please?
Groom: Dog kennels? No, no, no, mattresses, mattresses!
Verity: Oh, no, no. You have to say dog kennel to Mr. Lambert because, if you say mattress, he puts a bag over his head. I should have explained. Apart from that he's really all right....
from Monty Python's Flying Circus, Season 1, Episode 8 ("Full Frontal Nudity"), air date: Dec. 7, 1969.
[Keith A. Rowley]
March 13, 2008
Mike Leigh on Best Efforts (Dedicated to Larry Garvin)
Helen Lenoir: Now, gentlemen, we all know why we’re here. We seem to have come to something of a stand-still.
Arthur Sullivan: Indeed, we have.
Lenoir: Which, Arthur, is because?
Sullivan: Because, Helen, I am unable to set the piece that Gilbert persists in presenting.
W.S. Gilbert: The piece I persist in presenting, Sullivan, is substantially altered each time; otherwise, there would be little point in presenting it to you.
Sullivan: With all due respect, old chap, it is not substantially altered at all. You seem merely to have grafted onto the first act the tantalizing suggestion that we are to be in the realms of human emotion and probability, only to disappoint us by reverting to your familiar world of topsy-turvydom.
Gilbert: That which I have grafted on to Act One, Sullivan, has been specifically at your request. And, if you take exception to topsy-turvydom, you take exception to a great deal of my work of the past twenty-five years, not to mention much of what you and I have written together since Eighteen Hundred and Seventy-One.
Sullivan: That is patent balderdash.
Gilbert: Is it?
Lenoir: Gentlemen. If we might keep things cordial, we may make some progress. Arthur, can you really not see your way to setting this new piece?
Sullivan: Alas, Helen, I cannot.
Lenoir: Cannot or will not?
Sullivan: I am truly unable to set any piece that is so profoundly uncongenial to me.
Lenoir: Uncongenial though it may be to you, I must remind you that we here are conducting a business.
Sullivan: And may I remind you, Helen, that I am not a machine.
Lenoir: I would not suggest for one moment that you were.
Sullivan: You all seem to be treating me as a barrel-organ. You have but to turn my handle, and "Hey Presto!," out pops a tune.
Lenoir: Oh come now, that’s not fair. You are both contractually obliged to supply a new work on request.
Gilbert: The very act of signing the joint contract dictates that we must be businesslike.
Lenoir: Yes, Mr. Gilbert, and I was wondering whether you might not be able to solve our wee difficulty.
Gilbert: How, pray?
Lenoir: By simply writing another libretto.
Gilbert: That’s out of the question. I have worked for many long months at this play, which I have every confidence will be the best we have yet produced at the Savoy. To abandon it would be not only criminal, but wasteful.
Lenoir: I see.... What I don't understand, Arthur, is why you cannot set this piece. You're our greatest composer. Surely, you can do anything.
Sullivan: How very kind you are, Helen. But, I say again to you all: I am at the end of my tether. I have been repeating myself in this class of work for too long and I will not continue so to do.
. . .
Gilbert: If you wish to write a grand opera about a prostitute dying of consumption in a garret, I suggest you contact Mr. Ibsen in Oslo. I’m sure he will be able to furnish you with something suitably dull.
. . .
Sullivan: The opportunity to treat a situation of tender, human, and dramatic interest is one I long for more than anything else in the world.
Gilbert: If that is your sincere desire, I would be willing, with Carte's permission to withdraw my services for one term, to allow you to write a grand opera with a collaborator with whom you have a closer affinity than myself.
Sullivan: No, Gilbert.
Gilbert: I'm in earnest, Sullivan.
Richard D’Oyly Carte: No doubt that is something we shall be pursuing in the future.
Gilbert: Indeed. Well, that is your prerogative, Carte.
Lenoir: However, we are concerned with the present. Arthur, will you or will you not set Mr. Gilbert's new and original work?
Sullivan: Ma belle Héléne, ce n'est pas possible.
Sullivan: I'm afraid so.
Lenoir: That being the case, Mr. Gilbert, would I be right in supposing that you remain unable to accommodate us?
Gilbert: Indeed, Miss Lenoir. I have had what I deem to be a good idea and such ideas are not three a penny.
Lenoir: What a pity. This will be a very sad day for many thousands of people.
from Topsy-Turvy (October Films 1999)
[Keith A. Rowley]
March 03, 2008
Tom Stoppard on Formation Defenses (and Vic Goldberg's "Net Profits Puzzle")
Fennyman: Henslowe, do you know what happens to a man who doesn't pay his debts? His boots catch fire!
Cut to playhouse interior where the proprietor, Henslowe, is trussed up with his boots being held to a burning brazier Fennyman's henchman, Lambert. Fennyman, to whom Henslowe is indebted, interrogates Henslowe and instructs Lambert while Fennyman's clerk, Frees, watches. Henslowe moans in agony.
Fennyman: Why do you howl when it is I who am bitten? What am I, Mr. Lambert?
Lambert: Bitten, Mr. Fennyman.
Fennyman: How badly bitten, Mr. Frees?
Frees: Twelve pounds, one shilling, and four pence, Mr. Fennyman, including interest.
Henslowe: (moan) I can pay you.
Henslowe: (moan) Two weeks. Three weeks at the most. Oh, for pity's sake.
Fennyman: (gesturing to Lambert) Take them out.
Lambert pulls a rope lifting Henslowe's boots away from the brazier. Henslowe sighs with relief.
Fennyman: Where will you find ...
Frees: ... sixteen pounds, five shillings, and nine pence ...
Fennyman: ... including interest, in three weeks?
Henslowe: I have a wonderful new play.
Fennyman: (again gesturing to Lambert) Put them back in.
Lambert looses the rope, moving Henslowe's boots back toward the fire.
Henslowe: (moan) It's a comedy.
Fennyman: Cut off his nose ...
Lambert brandishes a knife and holds it under Henslowe's nose.
Henslowe: It's a new comedy by William Shakespeare ...
Fennyman: ... and his ears.
Lambert retrains the knife to the base of Henslowe's right ear.
Henslowe: ... and a share. We will be partners, Mr. Fennyman.
Fennyman motions for Lambert to desist. Lambert does so grudgingly, then pulls the rope again to lift Henslowe's boots from the fire.
Henslowe: It's a crowd-tickler. Mistaken identities, shipwreck, Pirate King, a bit with a dog, and love triumphant.
Lambert: I think I've seen it. I didn't like it.
Henslowe: But this time it is by Shakespeare.
Fennyman: What’s it called?
Henslowe: "Romeo and Ethel, the Pirate's Daughter."
Fennyman: Good title.
Fennyman motions for Lambert to untie Henslowe.
Fennyman: A play takes time. Find the actors. Rehearsals. Let's say we open in two weeks.
Fennyman throws open the stage curtain and walks toward where the audience would stand and sit.
Fennyman: That’s what, 500 groundlings at two pence a head; in addition, 400 backsides at three pence -- a penny extra for cushions. Call it 200 hundred cushions. Say, two performances for safety. How much is that, Mr. Frees?
Frees: Twenty pounds to the penny, Mr. Fennyman.
Henslowe: But I have to pay the actors and the author.
Fennyman: Share of the profits.
Henslowe: There's never any ...
Fennyman: Of course not.
Henslowe: Oh, Mr. Fennyman. I think you might have hit upon something.
Fennyman: Sign there.
Fennyman gestures to a piece of parchment that Frees has prepared. Henslowe, his hands still bound, does his best to make his mark while Frees tries to assist by moving the parchment around the stationary quill.
from Shakespeare in Love (Miramax Films 1998).
[Keith A. Rowley]
October 10, 2007
Seinfeld on Contractual Liability
I think the only reason we go to the dry cleaner is so I can say to the dry cleaner, "Well, it's ruined." And of course, the dry cleaner can respond, "It’s not our fault. We’re not responsible. We just ruin the clothes. That ends our legal obligation."
Seinfeld "The Stock Tip," June 21, 1990.
September 19, 2007
More on Suing God
Apropos our comments yesterday on the Nebraska legislator who's suing God, philosophy professor Patrick O'Donnell writes to note that the man-sues-God theme was the subject of a 2001 Australian film, The Man Who Sued God. In the flick, a lawyer whose marine insurance doesn't include coverage for "acts of God" decides to sue the Big Fella. O'Donnell says the film is "delightful" and actually raises some interesting issues about the role of churches in society and the practices of big insurance companies.
From the film's description, it appears that the Australian courts let him get all the way to trial on his complaint. It is a comedy, after all.
April 02, 2007
Skittles Commerical Available
Update: Thanks to Christopher Drahozal (Kansas), we have a link on the new skittles commercial, which can be found here.
The clip is even shorter than I remembered it, here’s the dialogue:
(Patron picks up pack of skittles and puts it on the counter)
Salesperson: Three hundred dollars.
Patron: Three hundred dollars?
Salesperson: Or you can buy your skittles at some other store around here.
(Camera pans to show that they are surrounded by clouds)
Announcer: Value the rainbow, taste the rainbow
April 01, 2007
Great New Skittles Ad
I'm wondering whether anyone else has seen this new skittles commercial. It features a man in the clouds, who is trying to buy a snack (some skittles) from a convenience stand. The salesman wants to charge $300, and when the patron argues that this is exorbitant, the salesman asks whether he has any other options. Is this price gouging in the clouds? I couldn't find a clip on Youtube, but if anyone knows where I can find this, email me here.
October 09, 2006
Bart and Lisa Simpson on Sales
In the seventh season of The Simpsons, Bart expresses some skepticism about the notion of a soul, then proceeds to sell his soul (in writing) to Millhouse for $5.00. Of course, Lisa advised Bart that he would regret it, but Bart didn’t listen:
Lisa: For five dollars, Milhouse could own you for a zillion years.
Bart: If you think he got such a great deal, I'll sell you my conscience for four-fifty. (Lisa walks away) I'll throw in my sense of decency too! It's the Bart Sales Event. Everything about me must go!
After the sale, the family dog (Santa’s Little Helper) will longer play with Bart, automatic doors no longer open for him, and Itchy and Scratchy cartoons cease to be funny. When Bart tries to buy his soul back from Millhouse, Millhouse has already “kinda traded” Bart’s soul at the comic book store for Alf pogs. Of course, in the end, Lisa buys back Bart’s soul for him:
Bart: You bought my soul back?
Lisa: With the spare change in my piggy bank.
Bart: You don't have any spare change in your piggy bank.
Lisa: Not in any of the ones you know of.
[Meredith R. Miller]
October 01, 2006
Film Clips: Telephone Scams
Duckman: She's a bigger ripoff than those talk-to-a-nympho-in-prison hotlines that double charge you on your phone bill when they know you can’t do a thing about it ’cause you can't tell anyone you called them in the first place . . . so I heard.
August 23, 2006
Wrong, Sir! Wrong!
This clip of the final minutes of the (original!) Charlie and the Chocolate Factory movie begins with a great contract moment when Charlie's grandfather asks about the promised lifetime supply of chocolate. Of course, despite Wonka's citation to section 37(b) of the contract, the movie has a happy ending. Enjoy!
[Meredith R. Miller]
August 03, 2006
The Marx Brothers on Contract Negotiation
Here is a link to a classic clip of the Marx brothers on contract negotiation and formation from A Night at the Opera:
[Meredith R. Miller]
May 31, 2006
Another Faustian Bargain?
"You have a debt to pay. You owe Davey Jones your soul. That was the agreement. Time's up! You're a marked man, Jack Sparrow."
If this "teaser" trailer for July's Pirates of the Caribbean: Dead Man's Chest is any indication, it looks as if Gore Verbinski and company are going to give pop culture-attuned Contracts professors more snippets with which to engage our students. (Film clips courtesy of Yahoo!Movies.)