Contracts Beware

Warning to the reader – although this starts as a reasoned and sensible diatribe about my perceived differences between torts and contacts, it quickly digresses into a rant of ridiculous proportions that should be taken with the large grain of salt that rubs my open wounds from hours and hours of reading, studying, living and breathing law school.

In torts we have focused on the intentional torts. These are things like assault, battery, trespass to chattels, trespass to land, and false imprisonment. There is a pretty clear cut rule that lets you know whether something is or is not one of these torts. For example, in most false imprisonment the plaintiff must show that (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged. Now, there are some slippery things in there. Like what does it mean to INTEND to confine someone? But there is a nice little rule for that too. Intent to confine just means that (1) the defendant acted with the purpose of confining him or (2) the defendant knew with substantial certainty that the confinement would result. If it comes down to trying to determine whether the plaintiff “knew with substantial certainty,” there are two tests that you can do: (1) the subjective test – did this person know with substantial certainty or (2) the objective test – would a reasonable person in the defendant’s position know with substantial certainty. Boom. It’s just like this little tree of logic that you follow out on different branches. It makes sense. Then you are thrown these hypos and you just climb the tree in the direction that is necessary.

Contracts, on the other hand, purports to have the little rules, and the little explanations, and the little branching, but it is really not like that. But instead, some of the rules and explanations just don’t make sense in terms of actual people interacting. Just to make a contract we have to have consideration, offer, and acceptance. And then there are all these weird oddities. Like, was that really an offer? Did both parties assent? For example, one guy made an offer to sell his house as a joke, and told his wife that he was joking. But the other guy believed him, so he was held to have made that offer. Even though he didn’t mentally assent to it, he didn’t make it clear. In another case, the company sent an offer, saying that the agreement would become a contract upon approval by their management. The other company signed their agreement. They were not notified, so they assumed that there was no contract. Oh but wait, the first company did not have to notify them because even though it seemed like they had made the offer, it was really the second company that made the offer, because there was still something the first company had to do (approval of manager) before it became a contract. Therefore, the second company somehow made an “offer” that had the terms in it that the first company did NOT have to notify them, because it clearly stated that it would become a contract upon the approval of the manager – not the approval of the manager and the notification to the second company. Watch it when you sign some company’s forms, you may think you are accepting an offer, but you may really be making an offer with their terms. Or here’s a great one. Person a telegrams person owner of bumper hall: “”Will you sell us Bumper Hall Pen? Telegraph lowest cash price – answer paid.” The owner of Bumper Hall Pen sends by telegram the following reply “Lowest price for Bumper Hall Pen £900.” Seems like an offer eh? Nope. Because the owner only answered the second question – “lowest price” and not the first question “will you sell us Bumper Hall Pen?” Just one more – a man offers to sell his land in a letter. At the end of the letter he writes, “This offer to be kept open until Friday.” Then he sells the land to somebody else before Friday. That little promise at the end of the letter is what we call a nudum pactum – that is a NAKED promise, a promise that is not legally enforceable. It is not enforceable because he received nothing in consideration for his promise. Thus, if the guy had given him five bucks to keep the offer open, it would have been a fine and dandy and legally enforceable contract. I could go on and on. I don’t do well when something flies in the face of what seems to be right and just. Maybe I just don’t understand the rules well enough, but it seems like there is a lot of trickiness involved and when non-lawyer types are making their contracts they wouldn’t seem to be aware of all these rules and sub rules and so on and so forth. So – be careful what you sign. If it looks legal it probably is.

Signing off from the land of law---

It's Anne. . . again.