Wednesday, October 6, 2021
I’ve been a bit negligent in my blogging duties as I’ve been busy with the start of classes (I’m teaching Torts this semester, hence my use of the word “negligent”). So, when my daughter recommended that I watch Squid Game, I scoffed and self-importantly told her that I’m too busy to even post on the contractsprofblog let alone watch a scary Korean thriller (believe me, Koreans make some scary thrillers – it’s not all just Parasite and Train to Busan). For those of you who aren’t on Tik Tok (I know there are one or two of you out there), Squid Game is the insanely popular, meme-worthy, Korean thriller which is one of Netflix’s biggest hits ever. But then she told me that Squid Game might be a scary-a** thriller but it’s also and more importantly for blogging purposes, a show about contracts and consent. Contracts and consent? My two favorite topics! So, in the name of research, I pulled myself away from my course prep and forced myself to watch the first episode of Squid Game. And lo and behold, my daughter was right. It’s all about contracts and consent -- and also the role of money in bargaining power and “bodily integrity transactions” and a whole host of other things relevant to this blog.
(Some spoilers ahead)
The hapless protagonist is a loving father who is a mess of a human being (he steals money from his mother to bet on horse races and doesn’t seem to exhibit the traits of a rational actor – you know this will end in a bad contract for him as a result). He loses then wins at the races, and then gets beaten up by thugs to whom he owes a lot of money who then force him under threat of physical injury to sign a waiver of his “physical rights,” meaning that they’ll take his kidney if he doesn’t pay up. (Duress alert! That contract is void). He’s desperate for money and gets even more desperate when he learns that his daughter is going to move to the U.S. because her step-dad just got a job there and the only way to keep her in Korea is by making enough money to support her. This is the “hard luck” bargaining situation that contracts scholars worry about – and one where I think it is hard to find robust consent. He then meets a well-dressed stranger with whom he plays an even stranger game (it involves money for winning and getting slapped for losing), and then after a few twists and turns, he wakes up in a giant gym-like room in a jumpsuit with dozens of others dressed like him. They are all made an “offer” to participate in a game, but they know nothing about what the game entails except that there is a very large prize for the winner. The freakily masked game officials want to ensure that everyone plays the game of their own “free will” even though it is clear that the one thing they all have in common is that they are all suffering under the weight of crushing debt and being harassed by aggressive debt collectors.
Before they can play the game, they must sign a ‘Player Consent Form” which is your standard adhesive contract offered on a take it or leave it basis. But unlike the ubiquitous TOS, there are only 3 provisions on this form. No hidden terms, so no problem, right? WRONG -- Oh man, so wrong! The first clause says that the Player is not allowed to stop playing although the third clause says the Games may be terminated if the majority agrees. The second clause says that the Player who refuses to play will be eliminated. But the terms are ambiguous, don’t you think? Who is the “majority”? Is it the majority of the participants or the freakily masked officials? What happens if a Player stops playing? Most importantly how will the Player be eliminated? The protagonist hesitates but instead of listening to that voice of doubt (aka the voice of reason) and insisting on getting some clarity about what the terms actually mean (where’s the Definitions section?), he looks around, sees the folks around him sign the contract without a second thought, and then exhibits herd mentality when he signs on the dotted line “Just because everyone else Clicks to Agree doesn’t mean you have to, does it?” That scene demonstrates once again that the rational actor is a rare (non-existent) creature indeed, especially if you have money troubles, peer pressure, physical fatigue and optimism bias. I won’t reveal what happens next, except to say that as with all contracts, the interpretation of the terms makes all the difference in the world and I think it’s fair to say, the contract did not meet the reasonable expectations of the parties. Talk about unconscionable contracts.
My daughter tells me that Episode 2 has even more contract stuff in it. But to be honest, I’m still recovering from the abuse of bargaining power and the rampant lack of robust consent in Episode 1.