Superhero Contract Law, Part One

Some superheroes like Batman and Iron Man are independently wealthy.  Some, like Wolverine, seem content with a fairly rough and tumble lifestyle.  But what about your everyday, working superheroes, the ones that have to take jobs on the side to make ends meet?  Some, like Spiderman, may work a normal job held by their alter egos.  Sometimes, though, superheroes take jobs that explicitly require the use of their powers.  For example, in one alternate continuity, Colossus worked as a construction worker, a job for which his super strength was no doubt very useful.

But these are comic book superheroes, which we know are prone to losing their powers for a variety of reasons.  What happens if a superpowered individual contracts around his or her powers and then loses them? Or what if Metropolis is attacked by a supervillain and our hero is called away to deal with it? The answer depends on whether the promised work is now impossible to perform.

I. The Rules for Impossibility

Impossibility (also called impracticability) is a defense to a breach of contract.  The Restatement (Second) of Contracts is a scholarly work intended to clarify and render consistent the rules by which courts interpret and apply contracts. It is not law as such, but as the United States is still (mostly) a common law system, it has proven highly influential in clarifying and regularizing doctrines of contract law.  For the most part it is a good summary of the law.  Section 261 of the Restatement provides a good definition of “impossibility”:

Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.

Perhaps more importantly in this case is § 262 which further explains:

If the existence of a particular person is necessary for the performance of a duty, his death or such incapacity as makes performance impracticable is an event the non-occurrence of which was a basic assumption on which the contract was made.

Thus, by default, the incapacity of the superhero qualifies as rendering performance impracticable.  And since superheroes rarely lose their powers forever, we must also consider § 269:

Impracticability of performance or frustration of purpose that is only temporary suspends the obligor’s duty to perform while the impracticability or frustration exists but does not discharge his duty or prevent it from arising unless his performance after the cessation of the impracticability or frustration would be materially more burdensome than had there been no impracticability or frustration.

There’s also § 264:

If the performance of a duty is made impracticable by having to comply with a domestic or foreign governmental regulation or order, that regulation or order is an event the non-occurrence of which was a basic assumption on which the contract was made.

So if a contract cannot be performed because for some reason the government says it can’t, performance is excused. But we may get even more mileage out of § 265:

Where, after a contract is made, a party’s principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.

II. Depowering and Impossibility

Under § 269, temporary impossibility is not a perpetual excuse.  If the superhero’s powers return while it is still possible to perform (e.g., the deadline isn’t up yet), then the duty to perform returns, so long as doing so wouldn’t be materially more burdensome than if the hero had never lost his or her powers.  For example, if Superman contracts to put several satellites into orbit within a week and is depowered for a few minutes because of exposure to green kryptonite, then that likely doesn’t excuse nonperformance: he could still manage the job easily enough.  But if Superman were depowered right up until a few hours before the deadline was up, then that would probably be materially more burdensome, and Superman would be excused.

But there are several other important things to note here.  First, this is only a default rule; a contract may have specific language requiring a party to pay for a breach even if performance becomes impossible.  Second, just how necessary does the particular superhero need to be for his or her incapacity to count?  This one is a bit more complicated.

As the commentary to the Restatement says, “if the performance remains practicable and it is merely beyond the party’s capacity to render it, he is ordinarily not discharged.”  “The difference has been described as that between ‘the thing cannot be done’ and ‘I cannot do it.'”

Thus, if Superman again contracts to put several large satellites into orbit in a single day but then loses his powers through no fault of his own, then he is likely excused (I’m assuming no other superhero is available or capable of performing such a feat).  However, if Superman instead contracted to put a single satellite into orbit within a month, then he likely would not be excused because the satellite could probably be launched by a lesser superhero or by a private company, and Superman would still be liable for the breach of contract.

III. Supervillains and Frustration of Purpose.

But what if a superhero is called away to deal with a threat of some kind, e.g. Colossus is working his construction job and Magneto makes an appearance two states away? Or while launching his satellites, Superman discovers an asteroid on collision course with the Earth? Clearly, something has to be done. Here we look more to §§ 264-65.

Section 264 is usually used in contexts were one party simply cannot get regulatory approval for a project, or if the property in question is condemned, i.e. where the government, for reasons of its own, acts to make performance of the contract a violation of the law. Unless the parties specifically agreed that the risk of this happening fell on a particular party, e.g. one party specifically promises that they can get regulatory approval, performance is excused. Applying this section to a superhero called away by the government to deal with a supervillain or other potential disaster is a rather novel application, but it would seem to fit for certain superhero characters, especially those with longstanding contacts with government agencies, e.g. the Avengers, the JLA, etc.

Even if the government doesn’t specifically make a request, § 265 is probably applicable. This rule is intended to deal with situations where something happens that neither party had counted on which makes performance impractical. Dealing with supervillains would seem to count as an “event the non-occurrence of which was a basic assumption on which the contract was made,” so failing to perform because one was occupied saving the world is probably justified under event the non-occurrence of which was a basic assumption on which the contract was made 265.

Note that in both cases the analysis in section II still applies. Just because a superhero has to save the world does not automatically exclude them from performing their contracts. Rather, saving the world must directly interfere with performance in such a way as to make it impossible. If Superman has to orbit a satellite on a specific day and Lex Luthor attacks Metropolis right then, then Superman will probably be able to go deal with that without fear of being sued for breach. But if Superman has to orbit a satellite sometime this month, it gets to be the 30th and he hasn’t done it yet, and then Lex Luthor attacks… well, I’m sorry Superman, but you had plenty of time to get this done. That’s on you.

III. Conclusion

In all of these cases, it seems likely that there would be some kind of “Depowerment and/or Supervillain” clause. Contracts are not written in a vacuum; they represent the accumulated experience and wisdom not only of the parties but of the parties’ counsel, who are presumably trained to identify potential problems and advise their clients accordingly. Most of the terms we see in contracts today have nothing to do with the actual substance of the contract but are there to remove ambiguities which have cropped up at some point in the past. For example, just about every contract has a clause stating that the contract does not create a partnership between the parties. Why is that there? Because at some point, a clever lawyer argued that it did, and now people are careful to say that it does not. In a world where superheros and supervillains exist, it would seem likely that the lawyers in that world would advise their clients to include appropriate clauses to deal with the possibility of a super-related disaster, particularly when contracting directly with a superhero.

The practical upshot for superheroes seems to be: if you’re going to contract around your powers and you can’t get specific language excusing you if you are depowered or called away to save the world, then go big.  Make yourself indispensable.  Otherwise you might find yourself on the hook for a satellite launch.

11 responses to “Superhero Contract Law, Part One

  1. Is a contract signed by an alias valid?

    • I don’t see why not. A forgery is construed as being the valid signature of the forger, so signing as/for someone else without telling the other party will probably bind the signer. As someone using an alias would be essentially signing for himself using a different name, there doesn’t seem to be any reason why the signer couldn’t be held to that contract.

      Courts are pretty good at privileging substance over form in matters of fraud. If you use an alias with the deliberate intent of getting out of a contract, a court isn’t going to let you do that.

    • I agree with my co-author. Generally speaking a signature is simply a way to memorialize agreement. There is nothing magic about one’s full name written longhand, for example, though signing one’s name does make it a little easier to prove that a particular person was the signer, so it’s usually preferred by the other party. As long as it’s well-known who, say, Cyclops is (i.e., the dude with the funny glasses), then it shouldn’t strictly speaking matter whether he signs a contract as “Cyclops” or “Scott Summers.”

    • Just to add on to what Mr. Davidson and Mr Daily have very correctly said, remember that a contract does not strictly have to signed at all unless it falls under the statute of frauds. Outside of the statute of frauds, a contract merely requires an offer and acceptance which is supported by consideration.

      It is entirely legitimate (albiet unusual) to form a contract without even knowing the name of the other party much less requiring them to sign.

      Even within the statute of frauds, the word signature is often defined very loosely and I do not believe the use of an alias would at all be a bar to satisfying the statute so long as that alias was identifiable with the person contracting and could in any way at all be identified as a signature.

    • In addition to what has already been said, the superhero and the company contracting the hero may not even have a signed contract. In some places a verbal agreement or even a handshake agreement are still legally binding contracts. If the two parties made an agreement of this sort, the name or alias of the hero wouldn’t matter as the contracting party would be able to say with whom they made the agreement. Of course it would be most beneficial to the contractor to have a third party ready to testify that they were there when the verbal agreement or handshake took place.

  2. Well, first off, not all jobs employing one’s powers are going to be by contract. Plenty of states have ‘at will’ employment laws, so it’s quite possible that if Colossus isn’t available to demolish that building on Tuesday because he was fighting Magneto, it’s entirely up to the construction company whether to keep him on or not, but they have no breach of contract tort to sue him for.

    Secondly, in a universe where superheroes regularly associate with each other, by the same token that one particular superhuman losing his or her powers doesn’t make the job itself impractical because others have similar powers, it’s highly unlikely that such folks will actually end up in breach of contract unless there’s a clause saying that they need to hold up their end personally with no helpers or subcontractors. That is, if Superman loses his powers during the month he’s supposed to launch the satellite, it’s easy enough to hold up his end of the contract by getting J’onn J’onnz or Power Girl or whoever to do it for him, and his client has no stake in whether that’s done as a favor, a gift, or by subcontracting them and transferring the funds paid for the satellite launch to the other hero’s bank account or charity of choice.

    So, I’d say rather than ‘go big’, the best option is to have plenty of friends in the superhero community who can pick up slack for you if necessary.

    It would probably also be a good idea to have the contracts for use of your powers be not with you as an individual, per se, but with a corporation or charitable foundation or nonprofit that’s set up by a civilian with a single identity that you can trust – like Lois Lane or Jimmy Olsen for Superman. That way there’s no question about proving your identity over and over again for purposes of new contracts and agreements, whether you’re declaring personal income properly for the IRS, all of that. It’s highly unlikely that Superman would be launching those satellites for personal gain, anyway, and far more likely that he’d be seeking to do some Gates-level philanthropy around the world with the proceeds, so it’s highly appropriate that the funds go to a Superman Foundation rather than Superman himself.

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  4. As long as it’s well-known who, say, Cyclops is (i.e., the dude with the funny glasses), then it shouldn’t strictly speaking matter whether he signs a contract as “Cyclops” or “Scott Summers.”

    But can Cyclops be sued? Is his identity publicly known? (I really am not sure, but I doubt it.) If so, pick another hero (Superman for example.) Don’t you have to file suit against an actual person?

    Can you sue someone without their name? If I can sue Cyclops (you know, the dude with the funny glasses) doesn’t it follow that I should be allowed to sue “Will Work For Food” (you know, the guy with the crazy look in his eye and the unkempt beard) I mean, hey, that was the name on his sign!

    I know it’s an oddball hypothetical, but seriously, can you sue someone without knowing their name?

    • That’s not an oddball hypothetical at all. Suing a fictitious defendant is a relatively common practice. A real-world (though controversial) example would be the RIAA lawsuits against file sharers. They often started as ‘John Doe’ lawsuits before the real identity of the defendants could be determined during discovery.

    • These days, I believe Summers is “out”. So his birth name goes on contracts and suchlike for X-Men-related purposes.

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