Sunday, January 21, 2007

law of the day, thoughts on contracts


First I'd like to thank everyone (ok, mostly just SK and Roro) for your overwhelming support of law of the day. It's very exciting. And Roro, thanks for reminding me of Carbolic Smokeball. It's not just British, in fact, it's still good law here in America and we read it in law school. It's even mentioned in The Paper Chase in that Contracts class from hell.

The issue in Carbolic Smokeball was whether there was consideration, and that's my law of the day topic. But to explain consideration, I should say a few words about contracts. Before law school, I'm sure I thought I knew what a contract was. I'm sure I thought it was something (maybe some kind of agreement) written down and signed and I'm sure the writing and the signing would have seemed to be the most important part of all. Well, now I know that's mostly wrong.

Yes, a contract is an agreement, but whether it's in writing or signed is hardly important at all. Obviously, the terms of a written contract are much easier to prove in court than those of an oral contract, but the oral contract is no less valid. (Unless, of course, the Statute of Frauds applies, but that's beyond this little post so we'll leave it.)

No, a contract is really more like a bargained-for set of promises. The elements of a contract are 1.) offer, 2.) acceptance, and 3.) consideration. Well, who's ever heard of consideration? I had been a party to several contracts in my time, but had never heard of consideration until somewhere in the middle of my first year contracts class and, it turns out, consideration is probably the most important part of a contract, without which, there can *be* no binding contract.

So what is consideration? Good question. To me it always seems like a nebulous concept. Black's Law Dictionary says it's "Something of value (such as an act, a forbearance, or a return promise) received by a promissor from a promissee." It can also be described as the bargain part of the promise. It has to cause a benefit to the promisee and a detriment to the promisor. And it has to be legally valid, which, fortunately, doesn't take much.

For example, if I promise SK that I'll bring her a little bit of my new bubble bath so she can try it, that alone can hardly be considered a binding contract. (Which is good for me, because I forgot to bring her the bubble bath last night, sorry SK.) I wanted to bring her the bubblebath from my gratuitous desire to give her a gift, and I anticipated nothing in return.

If, however, I had offered to bring SK the bubblebath in exchange for her promise to do my laundry, then we'd have a different situation. My promise of bubblebath would be in consideration of her promise to do my laundry. Doing my laundry would be a detriment to her and a benefit to me. Legally, we could be said to have a contract because there is consideration. If I show up without the bubblebath (as I did) and find my laundry all done (which it was) -- I would be in a pickle (which, fortunately, I wasn't, but I swear I'll bring you the bubblebath tomorrow, SK. Thanks for the laundry.)

In Carbolic Smokeball, the company placed an ad in the paper claiming that proper use of the Carbolic Smokeball would fix what ails you and promising a money reward to anyone who used it for the prescribed period and in the prescribed manner and yet still caught "the influenza." Well, the plaintiff in this case bought the ball and used it and still caught "the influenza" so she asked for her reward. When she wasn't given the reward she sued, etc, etc, and the case turned on whether there had been consideration. Ultimately it was decided that yes, her "thrice daily" use of the smoke ball according to the directions of the advertisement was certainly a detriment to her. And she bought the smokeball in order to use it, which was a benefit to the company. They were ordered to pay up.

Now, the question remains, what the hell is a carbolic smoke ball and can you get high off of it?


Anonymous roro said...

Hahaha - excellent explanation of consideration! I hope that bubblebath thing worked out for you and SK. Wouldn't want a lawsuit on your hands at this busy time.

A carbolic smokeball was kind of like a miniature turkey baster, with a nozzle to poke up your nose at one end and a flexible rubber bulb at the other. The bulb was full of powdered carbolic acid, which is a pretty serious disinfectant still in use today. You can sometimes find carbolic soap in health food stores and it REEKS. I'm sure Mrs. Carlill did get a little high off it - but I think she probably got higher on taking part in a lawsuit. Exciting!

9:05 AM  
Blogger reasonably prudent poet said...

roro, how do you know this stuff?? all your historical novel-writing research?

i have to admit, i'm a little disappointed. i had an image in my mind of something more like a black soccer-ball with a hole out of which would pour carbolic smoke. in my mind, it was like some kind of proto-bong. oh well. instead, it's similar to my neti pot only instead of running saline water up into your sinuses, you're squirting nasty smoke up there. hmm. i'd want my reward too.

9:41 AM  
Anonymous roro said...

"proto-bong"! How I laughed. Yeah, no such luck. And yes, I wrote a show years ago about miracle and band-aid cures in which the Carlill case figured prominently. I know, I know - comedies about contract law - hilarious!

12:59 PM  

Post a Comment

<< Home