We’ve talked about contracts with the devil on Law and the Multiverse before, in the context of the Ghost Rider movie. Recently I’ve been catching up on the (sadly cancelled) TV show Reaper (available on DVD and via Netflix), which has the benefit of being considerably better than Ghost Rider was, but on the other hand it lacks Sam Elliott.
Anyway, Reaper‘s protagonist, Sam Oliver, is tasked by the Devil with capturing souls who have escaped from hell, most of whom have inexplicably gained supernatural powers related to their earthly sins. In some cases the souls were people who had sold their souls to the Devil. Normally this is done with a written contract, which we get glimpses of at various points in the show, but in one episode the Devil foolishly only made a verbal agreement with a mortal, Gary, and Sam is asked to get Gary’s signature on a written contract. This leads to a couple of interesting legal issues.
(Note: We’re assuming that the Devil follows something close to common law contract law, as is typical in English and American Faustian bargain situations.)
I. Modification of Contracts
But wait, if the Devil already has a verbal agreement with Gary, why does he need a written contract? If he wants to add new terms to the deal that weren’t covered in the verbal agreement (which seems likely given the size of the written contracts), then the Devil may also have to support that modification with additional consideration (i.e. something of value promised by the Devil). According to the Restatement (Second) of Contracts:
A promise modifying a duty under a contract not fully performed on either side is binding
(a) if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made; or
(b) to the extent provided by statute; or
(c) to the extent that justice requires enforcement in view of material change of position in reliance on the promise.
Given the ‘gotcha’ nature of contracts with the Devil, we’d say subsection (a) doesn’t apply, since it’s highly unlikely that the new terms are fair and equitable. Subsection (c) is basically a reference to promissory estoppel and wouldn’t seem to apply here, either.
It’s an interesting question whether subsection (b) applies, however. It’s a reference to the Uniform Commercial Code’s rule that additional consideration is not required to modify a contract for the sale of goods. Is the sale of a soul a sale of goods? According to UCC § 2-103(k), “‘Goods’ means all things that are movable at the time of identification to a contract for sale.” Is a soul movable at the time of the contract? Maybe not, since (in the Reaper universe) the soul is attached to the body until death, at which point the soul either goes to heaven or hell. On the other hand, the term also includes ‘future goods,’ but it isn’t clear to me that a soul would qualify, since it already exists, it just isn’t movable.
But let’s assume the Devil (and Gary) can find some worthwhile bit of new consideration in order to justify the modification, or that the requirement doesn’t apply. Is there really a need for a written contract in the first place? Couldn’t they modify the contract verbally? Is the original verbal contract even valid? It depends.
II. Signed Contracts and the Statute of Frauds
In general contracts do not have to be in writing. The only fundamental requirements are an offer, acceptance of that offer, and consideration. However, it was long ago recognized that some contracts deal with such important rights (e.g. ownership of land), that they really need to be written down. And so the Statute of Frauds was created in England way back in 1677, and similar laws exist in most jurisdictions. The exact terms vary from statute to statute, but two common terms are relevant here. The first is that contracts involving the sale of goods above a certain value must be in writing. The second is that contracts that cannot be performed within one year must be in writing.
It’s hard to say how much a soul is worth, and of course there’s the issue of whether it’s a sale of goods in the first place. But in Gary’s case he sold his soul for material wealth far in excess of the minimum required by the Statute of Frauds, so as long as a soul is a ‘good,’ then the Statute of Frauds might be triggered.
As for the one year exception: it depends on the term. Someone who made a deal to live for at least one more year might trigger it, or someone who made a deal for a million dollars a year every year for twenty years. But most deals with the Devil seem to be wrapped up pretty quickly, and Gary’s was no exception. In fact, the Devil even contemplates having Gary killed in order to cheat him out of an opportunity to repent.
But even if the Statute of Frauds is triggered, Gary might have painted himself into a corner by accepting the Devil’s performance of his end of the bargain (i.e. the delivery of at least some of the material wealth). Acceptance of partial performance can prevent a party from claiming the Statute of Frauds as a defense. See, e.g., Railan v. Katyal, 766 A.2d 998, 1007-08 (D.C. Ct. App. 2001). So in this case at least, the contract did not need to be in writing as long as the Devil was satisfied with the terms of the verbal agreement. The Devil is correct, however, that proving the existence and terms of the verbal agreement can be difficult.
At one point Gary signs the contract, but he signs an alias (‘Jim Fartington’). Gary claims that this is not binding against him, since that’s not his name. In fact, there is no particular requirement that a signature be one’s legal name, much less written in cursive or the like. Instead, a signature is just a physical record of the intent to make a contract. ”The signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signer.” Restatement (Second) of Contracts § 134 (emphasis added). So when Gary signed the contract, he did so with the apparent intention of authenticating the signature as his own. Thus, he may well be bound by the contract.
Reaper is a great show, and it’s a shame it was canceled. Despite the plot revolving around contracts with the Devil, there aren’t too many legal issues, but this episode raised some great contract law issues that we don’t get to talk about on the blog very often. In this case, the Devil probably actually had Gary dead to rights. I guess the Devil should have consulted an attorney, which you’d think would be easy for him to arrange.