Contractual Conundrum: 2B or Not 2B
by
J. Michael Echevarria

The Socratic method may be like democracy: It simply doesn't work, but no one can think of a better system.

It doesn't work because students are uncomfortable, intimidated, and, ultimately, bored. There probably isn't a better system because, in the end, much of what an attorney (especially a trial attorney) winds up doing is reading, analyzing, and making arguments based on the case law.

So how do you keep students interested and at the same time not intimidated? Spinning a memorable and humorous yarn has always worked for me.

I teach Contracts and treat every topic area as an opportunity to tell a funny (and I hope a memorable) story through the use of a series of connected hypotheticals. The protagonists in the hypotheticals usually have unique character quirks that are appropriate for the topic of discussion. For example, in discussing indefiniteness, I use Ross Perot and his on-again, off-again 1992 presidential campaign. The pre-existing duty rule and duress occasion a colorful tale involving Don Vito Corleone's attempts to secure a Hollywood contract for Johnny Valentine. Alice and the White Rabbit discuss the meaning of words and contract interpretation. Dorothy and Toto go down the yellow brick road performing altruistic acts and eliciting a series of promises based on moral obligations. I discuss impossibility in the context of Star Trek (dying Tribbles and the Uniform Commercial Code) and West Side Story (impossible love under the common law).

Sometimes I have students participate in skits: Abbot and Costello's "who's on first" routine (with modifications) is a perfect vehicle to discuss mutual mistake. For promissory estoppel, I have the class act out a plaintiff's direct examination based on a case in the text. And for UCC damages, the students create the hypotheticals in class. I grade the hypotheticals on a scale of 1 to 10 based on creativity and general weirdness.

A good example of this technique is my class on mutuality of obligation. As everyone recalls from law school (sigh), ultimately the mutuality problem is one of discretion. If a promisor is vested with too much discretion with respect to the choice to perform, his or her promise is said to be fatally illusory. Since the discretion problem is obviously heightened when the promisor is indecisive, the protagonist of choice is Hamlet. The full story takes about ninety minutes to perform. What follows is my truncated version:

After Hamlet returns from a visit with the ghost of dear old dad, he vows revenge on King Claudius. Horatio offers to pay Hamlet 1,000 gold pieces if he promises not to kill the king. (This is unenforceable because of the pre-existing legal duty.) When Hamlet wavers, Horatio offers to pay him if he promises not to kill the king or stop dating the king's counselor's daughter, Ophelia. (The disjunctive nature of the promise makes it, once again, unenforceable.)

When the king becomes worried about Hamlet's mental state, he hires the investigative firm of Rosencrantz & Guildenstern as exclusive spies to the crown. But the contract does not spell out their obligations. (Are they obligated to do anything?) After Hamlet foils R&G, he hires the Players to perform The Death of Gonzago in an attempt to elicit the king's guilty response. But the Players threaten to go on strike until Horatio offers them more money. (Does their ultimate performance solve the pre-existing duty problem? No.)

Finally, Ophelia's brother, Laertes, challenges Hamlet to a duel. Being a Shakespearean character, Laertes decides to bring irony to the plot. He decides that Hamlet will be hoisted on his own petard: Laertes will sell Hamlet the sword that ultimately leads to Hamlet's demise. The parties enter into a requirements contract. Or is it? Paragraph 2A seems to state that it is a contract for a fixed quantity, yet Paragraph 2B seems to state that it is a contract whereby quantity is measured by Hamlet's sword requirements for the next year (two minor skirmishes, four major battles, and a holy crusade). Hamlet is indecisive -- he does not want to be committed to any fixed quantity. This is how he frames the issue:

2B or not 2B: that is the provision/ Whether 'tis nobler in the mind to suffer the slings and arrows of outrageous requirements or to take up objections to a sea of provisions and by opposing, end them/ To default, to breach/ No more and by breach to say we end the heartache and 1,000 natural requirements the contract is heir to/ 'Tis a default to be devoutly wish'd/ To default, to breach/ To breach: perchance to perform/ Ay, there's the rub, for in the performance of contract what mutuality of obligation may come when we have executed this mortal pact?

When I start this soliloquy, there are groans from the audience. By the time I finish, there is a rousing applause. Does my method work? I bumped into a student a few years ago who received an "A" in the fall semester. He did so because (according to him) he memorized the story of Hamlet (thus piling up points on the consideration issues). He told me he would have gotten an "A+" except that he kept mixing up Claudius with Polonius. Ay, there's the rub.