Monday, December 11, 2006

Ten Finals Lords-a-Leapin'

I like leaping.

I like L words.

I do not like Contracts. My blood pressure continues to rise, and then I calm it by reading in Torts or Criminal Law for a little while. I wonder if I will hate Contracts II as much next semester. We will have a different professor and probably a different text. But we will still have the courts of law and equity getting people out of being true to their contracts.

I will say that my reviewing over the past few days has helped to solidify more and more exactly what I hate about Contracts. It's not that people want to get out of Contracts--that happens, things change, things can be amended. Here's the problem. The courts then go a step further and get people out of paying up. That is what infuriates me. Case after case, chapter after chapter, people continually get out of paying liquidated damages.

What are liquidated damages? I'm glad you asked. When two parties enter into a contract, they can specify at the time "if you breach this contract and don't deliver my promised barge for transporting sugar then you'll pay me $17,000 per day to make up for my lost sugar sales" or something to that effect. (By the way, that may sound like a lot, but consider that it was a $25 million barge -- we're talking big business here!)

But the problem is then when the person breaches they're like, wait, I don't REALLY want to pay that $17,000. Maybe I can get the courts to say it was unfair! And the courts do. That's what infuriates me and makes my blood pressure rise. Liquidated damages are for when the amount of actual damages is hard to anticipate/calculate at the time of signing, so they just fix an amount. But then the courts go back and say, well, now, you didn't actually suffer $17,000 a day did you? Wasn't it really only a loss of X amount? And then they strike the whole bargain. It's like any time people have to actually PAY UP for breaching a contract, they cry Unconscionability! Unconscionability!

What is unconscionability? Glad you asked! One helpful definition found in Contract law is that unconscionability is when a contract is "so one-sided as to be unconscionable." Yes. Helpful, isn't it? Welcome to my world.

I will be so glad when this final is over. I want my blood pressure to subside. However, last night I officially cracked. I had a dream about the Contracts final. And it just went on and on. We were there, in some huge room that combined elements of Sunrise Elementary, BYU, ASU, Borders, Ding Ding Dang...it was horrifying. None of the officials in the dream was a real Hofstra Law School person but at the beginning the guy next to me who is a real-life classmate was sick and "went to the school nurse" (how awesome is that!) as we were about to take the final. So the professor sent me to the nurse, because I sit next to him so I must be sick, too. I was begging not to go because I didn't want to have to make up the final. When I finally escaped the nurse's office and came back I still had time to take the final but I had no pencils...and I had brought no books for the open-book part...and then the test administrator couldn't find the multiple-choice section to give us...and they made us take a break...and there were so many problems and it just kept going on and I couldn't just take the final and finish and be DONE. Ugh!

Meanwhile in the sweet land of Torts, the great Oliver Wendell Holmes wrote in 1881 about negligence, fault, and accident liability. He posited that an accident--something that happens unforeseen by anyone, unintentionally, and so on--should not actually make anyone liable if no one was at fault. Yes, someone might be injured and should be compensated for their injuries, but usually someone is at fault or at least negligently/recklessy harm-causing. I'm paraphrasing, and not very well, but the point is in the way he wrote about the rarity of accidents. It would be impossible to think about or chracterize accidents that way in this day and age, with the frequency of automobile let alone aircraft accidents. I'll find the exact quote and post it on here so I can make some semblance of sense.

Back to Contracts--my professor goes on and on about "efficient breach." That is to say, people shouldn't be held to contracts if circumstances have changed and it would now be economically efficient/more productive/ better for all involved to breach, pay, and move on. Well, exactly. But somehow everyone overlooks the "pay" part. All I know is, Ding Ding Dang. I again and again return to this example in my head. I breached the contract (leaving Korea before my year of teaching was up) because it became worth it for me to do so (a full tuition scholarship to Hofstra was worth more than a one-month salary bonus for holding out to the end of the contract) so I did, and I WAS HELD TO THE TERMS and paid the price (I owed them 50% of my recruiting fee = approx $600, deducted from my last paycheck). Simple. SIMPLE. DO YOU HEAR ME, YOU EVIL CONTRACTS PEOPLE? LIFE CAN BE SIMPLE! Make it so. I didn't go back saying "whine whine whine that $600 is a penalty and therefore unenforceable as a matter of law." Why shouldn't there be penalties? Ugh! I hate them all!

1 comment:

Bocepheus said...

We've discussed such dreams before. I understand it, hope you do too. And I don't envy you it. Ugh.