Monday, July 20, 2020
The Square Deal Furniture Company*
Deborah Waire Post
Every time I teach Williams v. Walker-Thomas, I am transported back in time to my own childhood. My observation of commercial relationships at that time, my experiences as a poor black person living among other working class white and black families on an integrated street in a small city, bear no relation at all to the language of the lower court decision or the dissent on appeal. Nor do they have a strong resemblance to the relationships described by Judge Skelly Wright in his decision. I did not experience retail sales as impersonal or arms-length transactions. And I certainly did not view my parents as unsophisticated purchasers. My parents were poor, not stupid—and like Ora Williams they dealt regularly with a person from a company like Walker-Thomas. I am pretty sure the extension of credit to my parents had nothing to do with income, assets, debts, or prior credit history. It had a lot to do with the personal relationship between them and the salesman from the Square Deal Furniture Company.
Mrs. Williams was a good credit risk because she had a personal relationship with Walker-Thomas and its agents. There is a lot less risk of default in a personal relationship. Imagine going through a cafeteria line and finding you are a little short of cash. The cashier smiles and lets you take the cup of coffee anyway. You probably will take extra care to stop by and pay for that coffee the next day. You probably would do it even if you knew that the cashier couldn't remember which of the several dozen people he had seen the day before had been given credit. Would you hesitate to take a soda from a soda machine if the machine were out of order and dispensed soda without accepting coins? Would you mail the telephone company the change you find in the coin return?
The representative of the Square Deal Furniture Store was a weekly visitor to our house. In retrospect, I am sure this had something to do with the timing of my parents' weekly paychecks. When he came, the salesman sat at the kitchen table and drank coffee with my Dad. He talked about lots of things besides the purchases and the payments my parents made. From where we sat as children, he seemed like a family friend. He listened to my parents when they explained they couldn't make a payment that week but would double up the next week. He sympathized when someone got sick. And over the years, he sold us a lot of merchandise. I have vivid memories of the white oxford shirts and plaid skirts we got to start school one year and the "French provincial" sofa, coffee table, and end tables that spruced up our living room for a couple of weeks before they showed signs of premature aging.
The furniture was shoddy, the clothes were fine, but that isn't the point. The point is the relationship that you develop with someone who is given the privileged status of "friend." You pay unless there is a catastrophe—an illness or loss of employment or something like that. And if you can't pay, you return what you did not pay for. But you certainly wouldn't expect someone to show up at your house with a truck and remove everything you had ever purchased.
In contract law, lawyers and judges talk as if the expectations individuals have of one another are created by the pieces of paper they sign. The Walker-Thomas Furniture Company did violence to Mrs. Williams and to the people with whom it dealt on a regular basis. It did violence by charging too much; it did violence by pressuring people to buy more than they could afford; it did violence by threatening harm; it did violence by disregarding friendships. There was bargaining. It was "business." But there was also trust. A salesperson who knows who you are and what you have to do to survive is not going to take more than you can afford to give. And in return, for years at a time, you faithfully make payments that amount to two, three, or even thirty times the market value of the goods you buy. You pay because you can get it on credit and because he will wait to be paid.
These sales are not entirely "arms-length" nor are they completely self-interested. They are based on personal friendship and they depend on personal loyalty. The trial court in Williams called the cross-collateralization clause a "sharp practice." Skelly Wright talked about an absence of meaningful choice. But the key to the decision in Williams is surprise. I might even go so far as to call it betrayal.
* Published in Amy Kastely, Deborah Post, Nancy Ota & Deborah Zalesne, Contracting Law (5th ed. Carolina Academic Press 2015).
This post is part of a series on introducing critical perspectives, including critical race perspectives into contracts teaching. Other posts in the series include:
- Guest Post by Chaumtoli Huq, Part III: Counter-Hegemonic Narratives
- Guest Post by Chaumtoli Huq, Part II: Freedom to Contract and the Reasonable ManGuest Post by Chaumtoli Huq, Part I: The Decolonial Framework
- Guest Post by Deborah Zalesne, The (In)Visibility of Race in Contracts: Thoughts for Teachers
- What Should a Court Do in Response to Racist Contractual Threats? Wolf v. Marlton Corp.
- Guest Post by Charles Calleros: Raising Issues of Race, Ethnicity, and Culture in 1L Contracts: Language Barriers
- Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part II – Consideration
- Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part I – Mutual Assent
- Teaching Assistants, Emily Houh's Redemptive Theory of Contract Law