Once Upon a Time

Like GrimmOnce Upon a Time is a show that blends fairy tales with the modern world—and brings up some interesting legal issues along the way.  Although Emma, the main character in Once Upon a Time, is a bounty hunter, there are indications that she will become a sheriff’s deputy, bringing the show closer to a police procedural.  We’ll be checking out all of the episodes over time, but Law and the Multiverse reader Marize wrote in with some specific questions about episode 4, which is the subject of this post.  There are a ton of spoilers here, so check out the episode on Hulu if you haven’t seen it already (with apologies to our non-US readers).

For those unfamiliar with the show, the premise is that various fairy tale characters have been whisked away to Storybrooke, Maine, where they play out a modern-day version of themselves (e.g. the evil queen is the mayor, Rumpelstiltskin is a pawn-shop owner).  The episodes focus on Emma’s efforts to solve the fairy tale characters’ problems, bringing closure to their stories.

I. The Setup

Episode 4 is basically a blending of the stories of Cinderella and Rumpelstiltskin.  Instead of her fairy godmother transforming Cinderella into a princess, Rumpelstiltskin offers to do the job, for a price.  He doesn’t specify what he wants, but there is a long and apparently complicated written contract, which Cinderella signs.  Sure enough, Rumpelstiltskin shows up later, indicating that he wants her first born child.  The prince—with assistance from the seven dwarves and the Blue Fairy—concocts a scheme to get rid of Rumpelstiltskin: Cinderella pretends that she is having twins and offers Rumpelstiltskin a new contract.  Under the new contract, Rumpelstiltskin gets both kids but must ensure a good harvest for the kingdom.  He signs the contract, but the quill he uses has been enchanted to freeze him in place.  The plan comes to naught, however, when everyone is taken to the modern world.

In the modern world, Cinderella (“Ashley”) tries but fails to find the contract and destroy it.  Later, she gives birth and Rumpelstiltskin (“Mr. Gold”) demands the child.  Emma makes a new deal with him: Ashley keeps the child, and in exchange Emma will owe Mr. Gold a favor.  Notably, this agreement is not committed to writing.

Obviously this episode is rife with contract and family law issues.  Did it matter that Cinderella didn’t appear to read the contract?  Are contracts for adoption enforceable?  Is Mr. Gold’s deal with Emma a valid contract?

II. Was the First Contract Valid?

There are three major issues here.  First, Cinderella didn’t read the contract.  Second, Rumpelstiltskin didn’t name his price.  Third, is a contract for adoption enforceable at all?

A. “Don’t Sign Anything Without Reading it First”

The first issue is more complicated than it might seem at first.  Let’s consider two modern Alabama cases that discuss failure to read a contract and illiteracy (we would prefer to cite Maine cases for this post, but Maine cases are kind of thin on the ground):

“A party who having full capacity and opportunity to read a paper, and to whom there is no misrepresentation of its contents, can not set up his own want of attention-his failure to read it, as a fact to invalidate it.”  Potter v. First Real Estate Co., Inc., 844 So.2d 540, 548 (Ala. 2002) (emphasis added).

“A person who signs an instrument without reading it, when he can read, cannot, in the absence of fraud, deceit or misrepresentation, avoid the effect of his signature, because he is not informed of its contents; and the same rule applies to one who cannot read, if he neglects to have it read, or to inquire as to its contents.”  Green Tree Fin. Corp. v. Lewis, 813 So.2d 820, 825 (Ala. 2001) (emphasis in original).

So whether Cinderella can read or not, her failure to find out the contents of the written contract won’t help her unless Rumpelstiltskin misrepresented the terms of the contract (e.g. that he lied about the price when Cinderella asked what it was).  Since we don’t know what the written contract says we can’t be sure.  If the written contract did say that the price was her first born child, then Rumpelstiltskin made a fraudulent misrepresentation (i.e. he lied in order to get her to agree to the contract) and the misrepresentation was likely material (i.e. she wouldn’t have agreed if she knew the truth).

On the other hand, if the contract was an “open price” contract, then Rumpelstiltskin didn’t misrepresent its terms.  But that would create its own problems, as we shall see.

B. Open Price Contracts

Open price contracts (i.e. a contract for “a price to be named later”) can be valid.  See, for example, Uniform Commercial Code § 2-305 (legal pedant note: Human beings aren’t “goods” and so the contract wouldn’t fall under Article 2.  Where adoption contracts are legal the consideration is not ownership of the child but rather an effort to secure legal adoption, so it would be a contract for services.).  The problem is that the price must still be reasonable.  Since “your first born” is cliché shorthand for “an unreasonably high price,” that’s not going to work.

C. Contracts for Adoption

So are contracts for adoption ever valid?  Yes, at least in some jurisdictions, but not the kind in the episode.  The contract in the episode boils down to Cinderella selling her child in exchange for a personal benefit.  This kind of agreement is flatly invalid as against public policy and may even be criminal.  From In re Baby Girl D., 512 Pa. 449, 454 (1986):

Sales of children contravene the public policy of this Commonwealth, and cannot be sanctioned by our courts. Thus, payments to or for natural parents by adoptor parents are permissible when the payments are for services which directly benefit the child, such as medical expenses directly related to the birth. Such expenses are paid to ensure a safe birth and healthy infant, and not for the benefit of the mother, although the mother certainly receives an indirect benefit. Payments by adoptor parents which do not directly benefit the child are impermissible.

So zealously do the courts guard against baby selling that the court in that case invalidated a sliding scale for adoption fees (i.e. higher income adoptive parents paid a higher fee) out of concern that it would lead to a preference for wealthier adoptive parents, which the court considered tantamount to “dealing in humanity.”

Thus, the contract with Cinderella was invalid outright if it specified the first born child as the price, and if it was an open price contract then the first born would be an unreasonable price.  Either way, Rumpelstiltskin has no claim to the child.

III. What About the Contract with Emma

So that’s strike one for Rumpelstiltskin. What about his deal with Emma?  Is it on firmer ground?  Maybe.  The lawyers and law students among you are probably thinking about the pre-existing duty rule.  That is, it could be argued that the deal is not binding because Rumpelstiltskin didn’t actually promise to do anything of value because his promise to Emma (i.e. to call off Cinderella’s debt) was meaningless because his contract with Cinderella is almost certainly invalid.

The trick is that what Rumpelstiltskin is offering is not to do something he is already legally obligated to do or to refrain from doing something he is already legally obligated not to do.  Instead, he’s refraining from asserting a legal claim, which falls under a different rule:

(1) Forbearance to assert or the surrender of a claim or defense which proves to be invalid is not consideration unless
(a) the claim or defense is in fact doubtful because of uncertainty as to the facts or the law, or
(b) the forbearing or surrendering party believes that the claim or defense may be fairly determined to be valid.

Restatement (Second) of Contracts § 74 (emphasis added).  Subsection (b) means that if Rumpelstiltskin believes that he had a valid claim to the child then his forbearance from asserting that claim is valid consideration for his deal with Emma.  On the other hand, if he knew his case was a loser (and there are some indications that he does know this), then it’s not valid consideration.  So this could go either way.

By the way, if you guessed that the deal was invalid because the statute of frauds requires that it be in writing…we’re afraid that was a classic bit of law school exam misdirection.  Nothing about the deal triggers the statute of frauds.

IV. Conclusion

From what we’ve seen of it, Once Upon a Time is a good show, and it’s shaping up to have a lot more legal issues, akin to Grimm.  We look forward to covering it in future posts.

17 responses to “Once Upon a Time

  1. Is there a legal way to define what the favor could be? It seems like Mr. Gold is going to run into the same open-contract problems he would have had with Cinderella.

    Can Emma be legally compelled to break the law? Or if she takes the job as a deputy, could she be sued for breach of contract if Mr. Gold asks her to ignore a crime and she refuses?

    • There are ways to define it. They could agree to a list of possibilities, or they could “agree to agree” (i.e. that they would negotiate the price later), or they could appoint a third party to decide if a later-announced price is fair or not. But yes, the same basic issue remains, which is that the price has to be reasonable.

      No, Gold couldn’t use the favor to compel Emma to break the law, at least not legally. Contracts for the commission of a crime are unenforceable (e.g. hit contracts, gambling debts in jurisdictions where gambling is illegal), and Gold would be guilty of solicitation of a crime.

      If he asks her to ignore a crime? That’s also unenforceable but for a different reason. The police have no duty to investigate or prevent crime, so asking her to ignore a crime wouldn’t be illegal (no different than asking to be let off with a warning instead of being given a speeding ticket). But I strongly suspect a court would say that contractually compelling a police officer not to investigate a crime is against public policy and therefore unenforceable. Depending on how Gold approached the issue he might be guilty of obstruction of justice (e.g. “if you don’t ignore this I’ll sue you for breach of contract” could be considered intimidation).

  2. While the deal between Mr. Gold and Emma took place on US territory between US citizens, the original contact between Cinderella and Rumpelstiltskin took place outside US jurisdiction and between foreign citizens. Furthermore, from the context of the tale, it is fairly clear that Rumpelstiltskin is some kind of Shidhe (fairy), and dealing for children (or outright kidnapping and replacing with a changeling) is very common in fairy tales concerning such beings. This appears to indicate that under Sidhe law children are considered valid tokens of trade and by their standards, the price demanded by Rumpelstiltskin is not unreasonable.

    Thus, this adoption procedure appears to be legal under the jurisdiction in which it was signed. The significance of this is debateable, as the US doesn’t recognise the legal status of fairyland, but what if they did?

    • The same result occurs whether the U.S. recognizes fairyland or not. This is an issue of conflict of laws, which can be a very complicated area but in this case is pretty straightforward.

      The Maine court would apply Maine law, even if there was an explicit choice of law clause in the contract that favored fairyland law. Under the Restatement (Second) of Conflict of Laws, the forum state (i.e. Maine) need not apply foreign law if “application of the law of the chosen state would be contrary to a fundamental policy of” Maine. Since selling babies is no doubt contrary to Maine public policy, the Maine court would apply Maine law.

      If there’s not a choice of law clause, we don’t even have to invoke public policy. The choice of law will be made based on:

      (a) the place of contracting,
      (b) the place of negotiation of the contract,
      (c) the place of performance,
      (d) the location of the subject matter of the contract, and
      (e) the domicil, residence, nationality, place of incorporation and place of business of the parties.

      Of these, (a) and (b) favor fairyland, but (c), (d), and (e) all favor Maine. A Maine court would easily find that Maine law should apply, especially given that the subject matter of the contract (a child), is a citizen of Maine.

    • You might very well be able to get him on other charges since (as is made clear here) you cannot just buy and sell children. It might be fully acceptable in his own culture* but in some cultures genital mutilation of girls or paying bribes to police officers is acceptable. Neither stands in this country.

      *Is it made clear in the series what Rumpelstiltskin is? In the stories he’s simply a strange being who seems to have magical powers.

      • It’s never speciafically made clear and I’m not really a folklorist, but there are a significant number of fairy tales where somebody makes a deal with a strange entity, with peculiar terms, bizare opt-out clauses and for unusual prices. I’m lumping these entities together and using “Sidhe” or “Fey” is used as a generic term for such beings, which I believe is a common approach.

      • It’s not clear, but in the fairy tale world he’s clearly not human, whereas in the real world he is. Nonetheless, there’s no mention in the fairy tale world of the contract not being enforceable or legal, so it seems reasonable to assume that such contracts are legal there.

        On the other hand, it could be that the contract is legally meaningless and that Rumpelstiltskin will simply take the child by force. That would explain why even royalty must resort to trickery and magic to stop him rather than going to court or declaring the contract void.

        But the status of the contract in the fairy tale world isn’t too important either way. Emma explicitly brings up the possibility that the agreement wouldn’t stand up in court in the real world, so we wanted to take a look at that.

  3. “The lawyers and law students among you are probably thinking about the pre-existing duty rule. That is, it could be argued that the deal is not binding because Rumpelstiltskin didn’t actually promise to do anything of value because his promise to Emma (i.e. to call off Cinderella’s debt) was meaningless because his contract with Cinderella is almost certainly invalid.”

    There are often exceptions to the pre-existing duty rule, and this is definitely a very good thing since it make renegotiations possible,a nd renegotations are vital in making business flow smoothly. One of the early cases about this that came up in my contracts class was Angel v. Murray, 322 A. 2d 630 (RI 1974), where a trash collector renegotiated in good faith after an unanticipated growth in the size of the city and it was upheld without further consideration being added. The rule laid out in that case (which was largely based on the then new version of the Restatement) required conditions such as the contract not being completely performed by either party and that there be an unanticipated change in circumstances, so that would probably not be sufficient to help Rumplestiltskin in this case. However, if memory serves I believe later cases loosened this even further so long as the renegotiation was done in good faith (without duress or threats) and the new contract was equitable.

    Rumplestiltskin could also have tried to protect himself by including some form of nominal consideration in addition to relinquishing the former contract, such as, say, a peppercorn. Of course, courts often tend to look at substance over form (and rightly so), which means that unless the peppercorn was something genuinely bargained for, it may be found to be invalid consideration. It would also be significant that Rumplestiltskin would actually have to deliver the peppercorn or it would be “mere recital.” Berryman v. Kmoch, 559 P.29 790 (KN 1977). Still, token considerations have worked at least some of the time.

  4. Questions:
    1) In the present day town, couldn’t the mayor get a restraining order against Emma keeping her away from Henry? Of course, putting Emma in prison would immediately end the series.
    2) Aren’t there some limits for when specific performance can be demanded from a contract? That is, even if the adoption contract was valid, couldn’t Ashley just refuse to hand the baby over, and all Rumple/Gold could do is sue for damages, not take the baby?
    3) The first episode suggests that Emma has the ability to detect the truth. It’s not clear if she really does, but suppose she does. If Gold says to Emma “I don’t yet know what my price is going to be”, and in fact he does know what his price is going to be and refuses to tell Emma, could that affect whether the contract is valid, assuming that Emma would have acted differently had she known the price? (If she knows he’s lying, and accepts the contract anyway, on the other hand, would that make it okay?) Also, at the start of the series she asks the Mayor if she loves Henry. If Emma can infallibly detect the truth and knows at that point that the Mayor does not, would knowing (because of her power) that the Mayor doesn’t love him give her the right to rescue Henry?

    • On what basis would the restraining order be awarded? So far Emma has tried pretty hard to keep Henry out of her investigations. She can hardly help it if he does stuff like hide in her car. Still, it’s a possibility, depending on Maine law and the extent to which the local judge is in the Mayor’s pocket.

      Yes, the limits on specific performance are another reason why the contract would not be enforceable. It’s also another reason why actual adoption contracts obligate the parties to seek a legal adoption, rather than transfer ownership of the child per se.

      With regard to the Emma / Gold contract: Yes, failing to disclose a material fact (i.e. the price Gold intends to ask) could be a basis for voiding the contract if Gold knew it was something Emma wouldn’t agree to. But if Emma knew Gold was lying and agreed anyway then it wouldn’t be.

      With regard to the Mayor: I don’t think “not living your kid” is an adequate basis for removing them from custody. Generally speaking the law is only concerned with a child’s basic health and welfare.

  5. “unless Rumpelstiltskin misrepresented the terms of the contract (i.e. that he lied about the price when Cinderella asked what it was).”
    I’m pretty sure you mean “e.g.” (‘for example’), not “i.e.” (‘that is’). Little things like that can trip up, well, a contract.

  6. While the contract in fairytale land is most likely invalid (if fairy tale land is under US jurisdiction), the real world contract is not. If I remember the episode correctly, Mr. Gold was acting as a middle man having found adoptive parents for the child so it seems the real world contract is a legal adoptive contract (provided such are legal in Maine). Correct me if I’m wrong but doesn’t the law hold the rights of the mother above the adoption contract allowing her to renege (and repay any expenses paid by the other party) at any point before actually handing over the child? This at least is how it is often portraryed in tv and movies.

  7. Do you think there is a unconscionability issue here? At least in the fairy tale world. It just seems that giving up a child would be an unexpected term Then again, this might be a very common thing in fairy land so maybe it would be similar to how mandatory arbitration clauses were, at one point, unconscionable (Broemmer v. Abortion Services of Phoenix) but now are commonplace because they are so normal in everyday dealings. There are enough fairy tales where a child is a price that it may not be an issue.

  8. Why are you trying to enforce real life law upon a story about fairy tale characters?

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