Law School Exam Question - Contracts

[Malthus]

Inspired by the "hell" question posted here: http://languish.org/forums/index.php?topic=13.1215

That one is an old joke and I'm pretty sure no-one ever actually used it as an exam, but it reminds me of a *real* law school exam I once had years ago - basically the teacher had us listen to a folk band (Figgy Duff I recall) doing this song:

http://www.wtv-zone.com/phyrst/audio/nfld/13/rabbits.htm

Rabbits In A Basket
Two gentlemen went walking down the street one day,
They meet a pretty fair maid coming the other way.
Sing fol the diddle-o, fol the diddle-o, fol the diddle-o day.

Said one onto the other, I know this young girl well,
And bidding her good morning, what have you got to sell?
Sing fol the diddle-o, fol the diddle-o, fol the diddle-o day.

I have butter and cream for sale, likewise some new laid eggs,
Two rabbits in a basket, and another one between my legs.
Sing fol the diddle-o, fol the diddle-o, fol the diddle-o day.

I know you have butter and cream for sale,
Likewise some new laid eggs,
But I wants to know the color and price
Of the one between your legs.
Sing fol the diddle-o, fol the diddle-o, fol the diddle-o day.

The color is is brown, sir, the price is fifty pounds,
The bargain made, the money paid, we're off for yonder town.
Sing fol the diddle-o, fol the diddle-o, fol the diddle-o day.

Then lifting up her petticoat, there was snowy white,
Then pulling down a rabbit, and she gave me a fright.
Sing fol the diddle-o, fol the diddle-o, fol the diddle-o day.

Then turning to this fair young maid as she was standing right,
I did not mean a rabbit but to lie with you all night.
Sing fol the diddle-o, fol the diddle-o, fol the diddle-o day.

It's you we may have bargained, but the money we did pay.
You robbed us of our fifty pounds, with a judge you're going to stay.
Fol the diddle-o, fol the diddle-o, fol the diddle-o day,
Sing Fol the diddle-o, Fol the diddle-o, Fol the diddle-o day.

... with the question being "comment on the contract law issues raised". 

[HVC]

legalise Bait and switch. Can't trust a whore these days!

[Malthus]

legalise Bait and switch. Can't trust a whore these days!

Not whore ... rabbit saleswoman. 

[Barrister]

Well let's see... issues of vagueness and public policy are all I come up with - oh I suppose one of remedies as well.  But surely any good law exam will have more issues than that...

[Malthus]

Well let's see... issues of vagueness and public policy are all I come up with - oh I suppose one of remedies as well.  But surely any good law exam will have more issues than that...

Oh my, more than that. What about the implied term of good faith? What about whether the parties were at idem - and if a "contract" existed in the first place, when the guy thought he was getting more than a bunny? What about whether the contract (if it existed) was void ab initio (your public policy point) or voidable? If void ab initio, there is the remedies problem ...

Lots of issues here. 

[alfred russel]

Well let's see... issues of vagueness and public policy are all I come up with - oh I suppose one of remedies as well.  But surely any good law exam will have more issues than that...

Oh my, more than that. What about the implied term of good faith? What about whether the parties were at idem - and if a "contract" existed in the first place, when the guy thought he was getting more than a bunny? What about whether the contract (if it existed) was void ab initio (your public policy point) or voidable? If void ab initio, there is the remedies problem ...

Lots of issues here.

Depending on how and where the story is transmitted, it may violate obscenity laws or standards?

[lustindarkness]

I don't know about the legal issues, but she pulled that rabbit trick on me too.

[DontSayBanana]

Amateur taking a shot here; I'll consider it practice for mechanics of property transaction and civil litigation.

The black and white of the contract is pretty clear. A rabbit was purchased for 50 pounds, and the customer is upset that the purchase was literal.

What I'm seeing from this:

1) Keeping a rabbit between your legs isn't exactly typical, so isn't the customer's assumption that the rabbit was a figure of speech reasonable?

2) Without knowing the price of the other rabbits, is it possible that the customer's being misled led to an unreasonable price paid for the rabbit?

3) What the customer was negotiating for is illegal in most locales, so could the customer seek compensation, assuming the transaction was illegal in the first place?

[Malthus]

Amateur taking a shot here; I'll consider it practice for mechanics of property transaction and civil litigation.

The black and white of the contract is pretty clear. A rabbit was purchased for 50 pounds, and the customer is upset that the purchase was literal.

What I'm seeing from this:

1) Keeping a rabbit between your legs isn't exactly typical, so isn't the customer's assumption that the rabbit was a figure of speech reasonable?

2) Without knowing the price of the other rabbits, is it possible that the customer's being misled led to an unreasonable price paid for the rabbit?

3) What the customer was negotiating for is illegal in most locales, so could the customer seek compensation, assuming the transaction was illegal in the first place?

Yup, the notion is that the customer here was basically fooled - anyone could see that paying 50 pounds for a "rabbit" is unreasonable  (that was big money back in the 19th century). The customer obviously thought he was "buying" sexual favours, a contract which is against public policy to enforce. So what should happen?

One point of view is that, as the contract as conceived by the customer is unenforceable, no remedy is possible - so he can't get damages for breach. But can he get his money back, or is he stuck with the dammed rabbit? The contract as conceived literally - money for rabbit - isn't illegal or enenforceable. But he is raising his own desire for entering into an illegal transaction as a weapon here. Can he do that?

Another point of view is that there never was any real contract, because there was never any agreement on the very basic term - what was for sale. Thus he gets his 50 pounds back. it would be so-called "unjust enrichment" for her to keep the money. 

[DontSayBanana]

Amateur taking a shot here; I'll consider it practice for mechanics of property transaction and civil litigation.

The black and white of the contract is pretty clear. A rabbit was purchased for 50 pounds, and the customer is upset that the purchase was literal.

What I'm seeing from this:

1) Keeping a rabbit between your legs isn't exactly typical, so isn't the customer's assumption that the rabbit was a figure of speech reasonable?

2) Without knowing the price of the other rabbits, is it possible that the customer's being misled led to an unreasonable price paid for the rabbit?

3) What the customer was negotiating for is illegal in most locales, so could the customer seek compensation, assuming the transaction was illegal in the first place?

Yup, the notion is that the customer here was basically fooled - anyone could see that paying 50 pounds for a "rabbit" is unreasonable  (that was big money back in the 19th century). The customer obviously thought he was "buying" sexual favours, a contract which is against public policy to enforce. So what should happen?

One point of view is that, as the contract as conceived by the customer is unenforceable, no remedy is possible - so he can't get damages for breach. But can he get his money back, or is he stuck with the dammed rabbit? The contract as conceived literally - money for rabbit - isn't illegal or enenforceable. But he is raising his own desire for entering into an illegal transaction as a weapon here. Can he do that?

Another point of view is that there never was any real contract, because there was never any agreement on the very basic term - what was for sale. Thus he gets his 50 pounds back. it would be so-called "unjust enrichment" for her to keep the money. 

So the most likely result would be she keeps her damn rabbit and he gets his 50 pounds back, but with no punitive damages because the counterclaims nullify each other and leave no contract to satisfy. Correct?

[Barrister]

So the most likely result would be she keeps her damn rabbit and he gets his 50 pounds back, but with no punitive damages because the counterclaims nullify each other and leave no contract to satisfy. Correct?

You start to get lost once you talk about punitive damages, which are not a contractual remedy, and counterclaims, since there's no such thing as "nullify eeach other".

[alfred russel]

Yup, the notion is that the customer here was basically fooled - anyone could see that paying 50 pounds for a "rabbit" is unreasonable  (that was big money back in the 19th century). The customer obviously thought he was "buying" sexual favours, a contract which is against public policy to enforce. So what should happen?

If I am on the Court of Appeals, where policy is made, could I plausibly argue that in these more liberal times that is not against public policy, and enforce the contract?

[Malthus]

So the most likely result would be she keeps her damn rabbit and he gets his 50 pounds back, but with no punitive damages because the counterclaims nullify each other and leave no contract to satisfy. Correct?

You start to get lost once you talk about punitive damages, which are not a contractual remedy, and counterclaims, since there's no such thing as "nullify eeach other".

I agree that punitive damages and counterclaims are irrelevant here (though it isn't totally true that you can't get punitive damages for a breach of contract claim - you can where the breach demonstrates the sort of bad faith that constitutes an independantly actionable wrong: see the decision of the Supreme Court in Whiten v. Pilot Insurance Co.). 

[Malthus]

Yup, the notion is that the customer here was basically fooled - anyone could see that paying 50 pounds for a "rabbit" is unreasonable  (that was big money back in the 19th century). The customer obviously thought he was "buying" sexual favours, a contract which is against public policy to enforce. So what should happen?

If I am on the Court of Appeals, where policy is made, could I plausibly argue that in these more liberal times that is not against public policy, and enforce the contract?

Ask for: specific performance.