ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Friday, October 16, 2020

Contracts Limerick of the . . . Year

My passion for Limericks ran out when my thesaurus broke.  And still, the muse occasionally o'ertakes me, and I am powerless to resist.  Especially since my muse is Seven of Nine.

Bark BeetleThe Alaska Supreme Court decided Brady v. State of Alaska in 1998.  The state was experiencing an infestation of bark beetles.  The Brady brothers thought they had a solution.  If the state would just sell them 400 forested acres in a negotiated land sale, they would harvest the timber and then re-forest.  This plan, they proposed, would address the beetle infestation.  

The state seemed interested and entered into negotiations with the brothers.  Seeking to ingratiate themselves with the authorities, the brothers offered to gather data that the state could use in developing a Forest Land-Use Plan (FLUP).  The state accepted this offer.  The state also accepted a $3000 "pre-sale deposit" and sent the brothers encouraging letters about an impending negotiated sale.

There was no sale.  There never could have been such a sale, because such a non-competitive negotiated sale would circumvent state regulations that prohibited the negotiated sale of that much contiguous acreage.  The Bradys then submitted an invoice for $26,250 for the professional services they provided in contributing to the FLUP.

The case is primarily a vehicle for teaching the contours of unjust enrichments doctrine.  The Brady brothers were seeking a business advantage in offering their services, and so the state was not unjustly enriched.  There are two exceptions to this general rule.  The Bradys could have recovered had they manifested an expectation of payment in advance (they didn't).  They also could have recovered if they had relied on the state's promise to pay (they didn't).

Along the way, the case touches on breach of contract and promissory estoppel.  The court quickly concludes that there was no breach of contract because there never was a promise.  No promise, no promissory estoppel.  The case pairs well with Hoffman v. Red Owl Stores, another Limerickworthy case.  Arguably there is no more of a promise in Hofmann than in Brady

And now, the Limerick:

Brady’s FLUP seemed an ideal solution
To a plague of beetle pollution.
But when your work is done gratis,
You don’t earn the status
Of one who can claim restitution.

Famous Cases, Limericks | Permalink


I'll have to read the case. Seems like bad faith on the state's part to hold out the prospect of a contract that it knew it couldn't enter into.

Posted by: Frank Snyder | Oct 16, 2020 1:42:54 PM

It is possible. The case also makes it seem like the state's representatives didn't know what they were doing. Technically, the land sale could have been legal, because each parcel was small enough for a negotiated sale, but the parcels were contiguous, and that threw up red flags.

Seems to me this sort of thing happens all the time in both the private and public sectors. Some actor thinks they see an opportunity and runs with it. They get pretty far in, and then somebody thinks to run it by legal, and the lawyers way, "I don't like the looks of this." Then the whole thing grinds to a halt. Nobody acted in bad faith, no express promises were made, but someone was certainly led down the primrose path.

Posted by: Jeremy Telman | Oct 16, 2020 2:42:17 PM

Perhaps. But it seems odd to think that government representatives can plead ignorance of the law as a defense.

Posted by: Frank Snyder | Oct 20, 2020 7:11:15 AM

Agreed, but if it were a promise to enter into an illegal contract, could a court enforce it? Non in pari delicto?

Posted by: Jeremy Telman | Oct 20, 2020 10:18:14 AM