The Hobbit Contract, Part 2

In the first part of our analysis of the contract in The Hobbit movie, we discussed several of its more standard clauses, including the entire agreement clauses and severability clause.  Today we’re going to get into the substance of the contract.

I. The Adventure and Consideration

Two clauses describe Bilbo’s primary obligations:

I, the undersigned, [referred to hereinafter as Burglar,] agree to travel to the Lonely Mountain, path to be determined by Thorin Oakenshield, who has a right to alter the course of the journey at his so choosing, without prior notification and/or liability for accident or injury incurred.

The aforementioned journey and subsequent extraction from the Lonely Mountain of any and all goods, valuables and chattels [which activities are described collectively herein as the Adventure] shall proceed in a timely manner and with all due care and consideration as seen fit by said Thorin Oakenshield and companions, numbering thirteen more or less, to wit, the Company.

All contracts require some consideration from all parties to the contract.  Consideration, in the contract sense, means a bargained-for performance or promise.  Restatement (Second) of Contracts § 71(1).  Basically, this is something of value given or promised as part of the agreement.  This can be anything that the parties agree is valuable; the classic example is a single peppercorn.  Whitney v. Stearns, 16 Me. 394, 397 (1839).

Here, Bilbo is promising to go with the Company to the Lonely Mountain and performing various services there, including extracting the treasure, plus a few more services we’ll get to later.  In turn, as we shall see, the Company promises to pay Bilbo one fourteenth of the profits, plus a few other obligations.  Thus we have “a promise for a promise,” otherwise known as a bilateral contract.

II. Defined Terms and Illegal Contracts

There are some other details to notice in these clauses.  One is the use of defined terms (e.g. “referred to hereinafter as Burglar”).  The parties to a contract may define terms however they wish, even in ways that contradict the definition used in statutes or regulations.  Restatement (Second) of Contracts § 201(1) and comment c.

The objective of interpretation in the general law of contracts is to carry out the understanding of the parties rather than to impose obligations on them contrary to their understanding: “the courts do not make a contract for the parties.” Ordinarily, therefore, the mutual understanding of the parties prevails even where the contractual term has been defined differently by statute or administrative regulation.

Id. comment c.  This is important in this case because of the use of the defined term “Burglar.”  As some commenters on the last post noted, contracts to do something illegal are ordinarily unenforceable (e.g. collecting on an illegal gambling debt).  But here what matters is not that the parties used the word ‘burglar’ but rather what sort of meaning they assigned to that defined term.  As we shall see, the contract doesn’t require Bilbo to do anything illegal (or at least not obviously illegal), and so the contract will probably not fail for use of a questionable term.

III. Contract Interpretation and the Limits of Liability Waivers

These two clauses also pose something of a contradiction.  On the one hand we see the first of many liability waivers: “[Thorin has] a right to alter the course of the journey at his so choosing, without prior notification and/or liability for accident or injury incurred.”  But on the other hand we see this explicit obligation of care: “[the Adventure] shall proceed in a timely manner and with all due care and consideration.”

Ordinarily “due care and consideration” signifies taking on liability for negligence, so this conflicts with the earlier liability waiver.  Perhaps the two can be reconciled by the phrase “as seen fit by said Thorin Oakenshield and companions.”  Thorin and Co. could always claim that the amount of care and consideration they saw fit was extremely minimal, though that runs the risk of making the clause meaningless, which courts usually don’t like to do.  ”As a general proposition, whenever possible, the law favors reconciliation of clauses within a contract which appear contradictory.”  City of Columbia v. Paul N. Howard Co., 707 F.2d 338, 340 (8th Cir. 1983).  Taken together with the numerous other waivers and disclaimers, I think a court would probably conclude that Thorin & Co. were not taking on any particular duty of care.  ”A writing is interpreted as a whole.”  Restatement (Second) of Contracts § 202(2).

Waivers or disclaimers of liability are an important part of many contracts.  These can include waivers of a product warranty (seen all the time in software license agreements) and waivers for liability due to negligence (often required before doing something dangerous like skydiving).  But there are limits to liability waivers.  While a party to a contract can ordinarily waive liability for negligence (although not in every jurisdiction), one cannot waive liability for gross negligence, recklessness, or intentional misconduct.  So the numerous (and sweeping!) waivers and disclaimers may not be as effective as they appear at first glance.

IV. Conclusion

We aren’t quite done with the substance of the contract, but before we get there we have some more boilerplate to cover.  There is a lot of standard language in this contract, and this is similar to real-world contracts, particularly form contracts, which tend to have a lot of standardized language surrounding a handful of fill-in-the-blanks.  So far the Dwarves haven’t committed any unsalvageable drafting errors or done anything that might jeopardize the validity of the contract.  We’ll see if that keeps up!

50 Responses to The Hobbit Contract, Part 2

  1. And what about a sanity clause?

  2. It will be interesting to see if they are careful about what treasure is, so they can explicitly either not cover Bilbo happening upon a ring, or if Bilbo would be in violation for not declaring it. [Note: I can't remember if he does say 'I found a ring!' to the dwarfs - I'm currently rereading the book and at the beginning.]

    • As written so far, that’s not an issue. The service Bilbo contracts to provide is “extraction from the Lonely Mountain of any and all goods, valuables and chattels”. The ring wasn’t in the Lonely Mountain when found, so it’s not covered. The contract simply doesn’t say anything about who gets the treasure they find on the way.
      (Although Bilbo’s acceptance of Sting seems to be de facto agreement to divide the troll’s hoard among the company.)

  3. It makes sense to include a waiver of liability for injury when hiring a burglar to steal a dragon’s hoard, but what about other injuries that are not foreseeable? For example, the company was threatened by trolls, goblins, worgs, giant spiders and Wood Elves before they even got to the Lonely Mountain. Would Thorin have been liable for negligence for not researching a path that involved fewer, shall we say, “random encounters”?

    • He’d have to make a compelling case that there was in fact a safer route for a company of dwarves from the Shire to Smaug’s lair and given the state of interspecies relations at that time that would be a tough sell

    • I suspect those would not be a problem for the dwarves legally. Even before you get to the liability waivers, there’s a decent argument that Thorin was not negligent in the route. Without negligence or some specific duty to preven that kind of harm, it would be hard to hold Thorin liable.

      And it seems those are the types of things the liability waivers were meant to cover, so even if Thorin was negligent (as long as not grossly negligent) the liability waivers will probbly be effective.

  4. I think you’re being a little too quick to let Thorin & Co. off the hook in contracting with Bilbo to do something illegal.

    The substance of the duties to be performed by Bilbo suggests that he is being hired to be Thorin’s repossession agent. The majority of the law regarding repossession is rooted in statutory authority (specifically, the UCC) but, assuming both that my memory is reasonably accurate and that the UCC formalized many things that were common-law, repossessions must be peaceable, and repossession does not create a right to enter a domicile.

    Lonely Mountain was Smaug’s domicile (and, arguably, his property by adverse possession.) So Bilbo’s entrance to retrieve property rightfully belonging to the dwarves was an improper repossession. And the attempted repossession certainly wasn’t “peaceable” in any sense of THAT word.

    I don’t see any way to interpret the contract that doesn’t require Bilbo to make an improper repossession, unless dragons have no rights. And if dwarves and hobbits have legal rights, it’s going to be hard to argue that dragons shouldn’t.

    Of course, there’s also an argument, that, to the extent that Bilbo intended to remove property from Smaug’s hoard which was not lawfully the property of Thorin and company, he faces liability for felony murder. This chain of thought is left as an exercise for the reader…

    • I think you’re thinking about it the wrong way. Smaug isn’t a rightful possessor of the treasure or the mountain, adverse or otherwise. He’s a criminal trespasser, thief, and mass murderer. Now, it’s true that his attack happened a long time ago, but I don’t think adverse possession would give a murderer lawful possession of his victim’s property.

      When Bilbo enters the Lonely Mountain, he does so with the consent of the rightful owner and sovereign, Thorin. Similarly, the Mountain is not Smaug’s “dwelling house” since he has no rightful title or possession, so Bilbo cannot be committing common law burglary. There is arguably some issue with Bilbo’s taking of the cup, since the common law right to self-help repossession required avoiding breaching the peace, but Thorin (the lawful sovereign, remember) instructed Bilbo to take it, and so it could not be a breach of the peace. Remember that breach of the peace is short for “breach of the King’s peace.”

      As for felony murder: this falls apart even without invoking the “Thorin as sovereign” technicality, since Smaug was killed by Bard in lawful self-defense. Coke described the felony murder doctrine in 1644: “a death caused by any unlawful act is murder.” He illustrated thus: If a man shoots at a wild fowl and accidentally kills a man, that is an excusable homicide because the act of shooting is not unlawful; but if a man shoots at a cock or hen belonging to another man and accidentally kills a man, that is murder because the act is unlawful. In this case, Bard is acting in lawful self-defense and so his killing of Smaug cannot be felony murder for Bilbo.

      (NB: the felony murder was abolished in England in 1957, but it would have still been the law when Tolkien wrote The Hobbit in the early 1930s.)

      • Also, I’m entirely uncertain as to the legal aspects, but what about a claim that Smaug has taken Erebor as spoils of war? (Spoils of war not being a topic I encountered in my legal education, I’m not even sure where to START researching that one…)

      • Smaug is neither a sovereign state or a soldier for one and he might not even be considered a person. Besides, armies usually have a very clear prohibition on looting (even if the ones that actually obey it regularly are in the minority).

      • TimothyAWiseman

        @Gyre You have a point about it being possible to not consider him a person.

        But it seems there’s a good argument he’s a sovereign. He claims a fairly large area and acknowledges no other title to it, nor does he follow any other laws and no one else has effective jurisdiction over him. He wages war in his own name against other nations, sometimes winning. That sounds a great deal like a sovereign.

        As for the clear prohibition on looting, you are entirely right. But that is also modern. In the not too distant past, looting was not only tolerated it was encouraged and could easily constitute a decent chunk of a soldier’s salary.

      • “armies usually have a very clear prohibition on looting”
        Did anyone tell the Vikings that? Or the Nazis? Or the conquistadores?
        Or for at least a POTENTIALLY less controversial example, the privateers who preyed on Spanish shipping in the Caribbean?

      • In re. to TimothyAWiseman

        To be a sovereign one must have both a state and a civilization. As far as we can tell with Smaug he has neither. Smaug never makes formal declarations of war nor does he attempt to have diplomatic ties with other distinct political entities. His actions seem better described as banditry.

        In re. to James Pollock

        If we’re simply relying on what was common centuries and millennia ago then we might as well prosecute Bilbo if he wore the color purple on his clothes because prior to a certain time period people of his economic class/bloodline weren’t from . We are trying to deal with this in 20th/21st century terms, otherwise the entire thing falls apart from the sheer difference in law over human history.

      • “If we’re simply relying on what was common centuries and millennia ago”

        Say, you do know WHEN the Hobbit is set, don’t you?

      • Yes, but I believe that you are missing the point about when the site sets the LAW. For the most part Daily and Davidson are using 20th/21st century legal concepts to analyze the contract in The Hobbit, therefore it seems ridiculous to arbitrarily demand that we observe legal standards (or lack thereof) from the 9th century when everything else has been dealt with using legal standards of the past century.

      • In this case I’m trying to use English common law rules where I can find them because I think that better fits both Tolkien’s own mindset (he was born in 1892, remember) and the world the Hobbit is set in. I’ve felt reasonably comfortable occasionally falling back on American cases because contract law has not changed all that much (compared to say, torts, which is dramatically different in modern America than it was in 16th-19th century England).

        Unfortunately the conversation in the comments has veered into criminal law issues that it’s much harder to come to any firmly supported conclusions about. We have some idea of what contract law must be like in the world of the Hobbit (or at least the movie), since we can assume that the contract is more or less correctly drafted, and the implication seems to be that it’s very similar to contract law in common law countries of the real world. But we have virtually no idea what the criminal law is like, and so we can only speculate. Naturally, then, we can come to very different conclusions.

      • Alright, fair enough.

  5. “Smaug isn’t a rightful possessor of the treasure or the mountain, adverse or otherwise.”
    Objection! This is a conclusory legal opinion based on facts not in evidence. THE DWARVES consider Thorin’s claim to be rightful and Smaug the trespasser. However, it is entirely possible that Smaug was there first and the dwarves invaded Smaug’s property, and, alas, we do not have Smaug’s testimony on this topic.
    (Agreed that Smaug is, at best, entitled to only a share of the treasure hoard… however, it is not at all clear that he is rightfully entitled to none of it, nor that Thorin and the dwarves are entitled to all of it. We know only that the dwarven treasure was commingled with Smaug’s other treasure. Of course, this problem is resolved neatly by noting that as Smaug died intestate and leaving no known heirs, the remaining treasure escheats to the Crown.)

    Smaug was killed in rightful self-defense, agreed. But the various men of Dale who were killed because Bilbo awakened a dragon in the process of committing a felony* were not rightful deaths by any stretch. (Of course, that’s still two movies away.)

    *The felony being Bilbo’s attempted burglary of that part of the treasure to which the dwarves were not already entitled. Alternatively, intentionally provoking a dragon is arguably arson (although I hope you don’t mind if I can’t cite any cases to support this particular argument).

    • Objection! This is a conclusory legal opinion based on facts not in evidence. THE DWARVES consider Thorin’s claim to be rightful and Smaug the trespasser. However, it is entirely possible that Smaug was there first and the dwarves invaded Smaug’s property, and, alas, we do not have Smaug’s testimony on this topic.

      Eh, we have other historical evidence (e.g. The Quest of Erebor) that makes it clear that the Dwarves were there first and Smaug attacked them without provocation.

      We know only that the dwarven treasure was commingled with Smaug’s other treasure

      What other treasure? I don’t recall any indication that Smaug brought anything with him from the Grey Mountains.

      Smaug was killed in rightful self-defense, agreed. But the various men of Dale who were killed because Bilbo awakened a dragon in the process of committing a felony* were not rightful deaths by any stretch.

      “[A] felon is not responsible for a homicide caused by some other person. It is not the purpose of the felony-murder rule to foist authorship of a homicide upon a felon; the purpose is merely to clothe the felon’s act of killing with malice. Thus, the felony-murder rule was not applicable … where a robbery victim killed an innocent bystander.” Wharton’s Criminal Law § 151 (citing numerous cases). There are cases to the contrary, but they usually involve the death of a co-felon or the use of the felon’s own weapon.

      • We know only that the dwarven treasure was commingled with Smaug’s other treasure

        “What other treasure? I don’t recall any indication that Smaug brought anything with him from the Grey Mountains.”

        Referring to page 35 of my copy of the revised version of The Hobbit:

        “Dragons steal gold and jewels, you know, from men and elves and dwarves, wherever they can find them; and they guard their plunder for as long as they live” (Thorin to Bilbo). Assuming that Thorin’s characterization of dragons is accurate, it would be reasonable to assume that whatever hoard Smaug had accumulated before coming to Erebor is in Erebor now. It’s possible that he had no hoard to bring (did he could to Erebor because another dragon forced him out of his previous home, and steal the treasure he had at that point? Did orcs or dwarves force him to move, stealing the treasure he had at that point? Either of these is certainly possible, and the answer cannot be resolved until the present contents of the hoard can be inventoried… which is not known at the time the Company contracts with Bilbo.)

  6. “Eh, we have other historical evidence (e.g. The Quest of Erebor) that makes it clear that the Dwarves were there first and Smaug attacked them without provocation.”
    The fact that Gandalf was part of Thorin’s party makes his testimony somewhat suspect. The fact that the Quest of Erebor consists largely of Frodo recounting Gandalf’s testimony, however, makes it inadmissible as hearsay. (Wikipedia’s blurb doesn’t support your claim, BTW. I spent a little time with the Google to find more detail of this story, which I am not familiar with. I couldn’t find a summary that showed that Smaug hadn’t been in Lonely Mountain before the dwarves moved in.)

    “What other treasure? I don’t recall any indication that Smaug brought anything with him from the Grey Mountains.”
    At a minimum, he also raided Dale.

    A “felon is not responsible for a homicide caused by some other person.”
    Dragons are persons? Is there any point where Tolkien indicates anything like that?
    Are the men of Lake-Town “innocent bystanders”? I can’t recall whether they actually helped the Company, or merely became entangled in the fight between the Company and Smaug AFTER Smaug goes all dragony on them.

    • Appendix A of Return of the King states “So the rumoues of the wealth of Erebor spread abroad and reached the ears of the dragons, and at last Smaug the Golden, greatest of the dragons of his day, arose and without warning came against King Thror and descended on th Mountain in flames.”

      There’s nothing to suggest that Smaug brought any treasure with him, nor that that the dwarves were not there first. Not all the treasure was originally the dwarves’ property – some was taken from the neighbouring men, and the elves of Mirkwood may have had valid title to some of it (a contract dispute was in process) – but Smaug had no legitimate claim to any of it.

      Escheating everything to the crown doesn’t completely resolve the final disposition of the treasure.

      The men of Dale claimed compensation for torts against them arising from Thorin and co’s actions, namely Smaug’s final attack on their town. If thsi claim is legitimate, should it be paid before or after the treasure is split into 14 shares? The same applies to any other torts committed during the adventure, such as Bilbo’s thefts of food from Thranduil’s palace.

      The elves state that they are owed some of the items in the hoard by contract with the Lonely Mountain. As new king, Thorin inherits all his predecessor’s contractual obligations, like when a new CEO takes over a company, so he is still required to hand over the agreed goods or pay any penalty clauses. Claiming without proof the elves did not deliver the agreed price would not impress the court.

      If the elves have a valid claim, would it be paid out before or after the shares are allocated? Since the legal basis is different, I presume the answer could be different to that for paying compensation.

      • Try on this sequence and see if is contraindicated:
        Smaug inhabits Erebor, perhaps collecting treasure there, perhaps not. Then, for reasons of his own, he leaves and abides somewhere else (Dragon mating season? Making war with the other dragons? A sightseeing tour?)
        Anyways, while he’s away, the dwarves show up and dig holes all over the place.
        Smaug comes back, finds that his nice mountain is infested with both dwarves AND men, so he drives them off. And that’s where Bilbo’s testimony begins, with Smaug once again in possession of Erebor and the dwarves wanting to take it.
        Unless you can eliminate this chronology, and any other like it, to state categorically that Smaug had no right to the mountain or the treasure is incorrect. The nature of Smaug’s claims, if any, died with Smaug before he had a chance to present his case.
        Of course, IF Smaug had a cognizable claim on Erebor, then this case, like the GL one before it, becomes an issue of unlawful eviction.

      • Unless you can eliminate this chronology, and any other like it, to state categorically that Smaug had no right to the mountain or the treasure is incorrect.

        It’s difficult to prove a negative claim, but all the available evidence suggests that Smaug was born in the Withered Heath in the Third Age, lived in the Grey Mountains for a time, and then came to Erebor, long after the Dwarves had set up shop there. The Dwarves had a permanent settlement in the Lonely Mountain since year 1999 of the Third Age. Smaug didn’t “return” (under your theory) until 2770. I’m going to go out on a limb and say that title passed to the Dwarves after 771 years of possession, especially since under your theory they didn’t take the mountain by force but rather came across it after Smaug had left it voluntarily.

        Moreover, the Dwarves had known of the mountain since the Second Age, long before Smaug was likely even born.

        In any event: Tolkien is dead, so the facts are limited to what we have of his writing. It’s fun to imagine alternative scenarios, but I think we have to take what he wrote as given. Obviously we can come to whatever conclusion we want if we make up our own facts, so I think the more interesting question is what conclusions we can come to if we stick to the facts we are given, and that includes assuming that Tolkien (and his characters) are telling the (reasonably complete) truth, unless we have strong reasons to think they are lying.

      • “all the available evidence suggests”
        As I pointed out, all the surviving evidence comes from one side of the conflict.

        “I’m going to go out on a limb and say that title passed to the Dwarves after 771 years of possession”
        So a period of possession IS sufficient to establish a claim of ownership, and we’re just debating how long is long enough? (The challenge, there, is that the different types of intelligent (and semi-intelligent) races have VASTLY different lifespans, so what may be a relatively short time to an elf or dragon may be a lifetime for a dwarf or several generations of men.

        Clearly, Tolkien is on the side of the dwarves (and, eventually, flips the elves to the “good” column).
        Applying English common-law solutions to Erebor is tougher than it looks, because you have to throw in the possibilities of unheard evidence and possible international dealings as opposed to just applying one set of law. If Smaug is sovereign in his domain, then the English common-law may not be applicable in ANY way. Smaug doesn’t seem to be the sort of sovereign to accept rule of law unless forced to by a more powerful entity, and it is to be noted that Sauron didn’t make ANY rings for dragon-kings…

    • At a minimum, he also raided Dale.

      Raided, yes, but there’s no evidence he took treasure from Dale up to the mountain.

      Dragons are persons? Is there any point where Tolkien indicates anything like that?

      Whoa, you can’t have it both ways. If Smaug isn’t a person then he’s just an animal (which would be my preferred theory anyway), and all of these issues disappear. He has to be a person in order for there to be any issue of repossession, burglary, or (therefore) felony murder.

      Are the men of Lake-Town “innocent bystanders”? I can’t recall whether they actually helped the Company, or merely became entangled in the fight between the Company and Smaug AFTER Smaug goes all dragony on them.

      They helped the Company get to the Lonely Mountain by providing boats and some provisions, but the men left them once they got to shore. One could possibly make an aiding and abetting argument, but I think it’s tenuous.

      • Raiding generally implies taking something from the place raided.

        In any case if dragons aren’t persons then Thorin and company are probably doing nothing more than dealing with a dangerous animal inhabiting their home and Thorin, as the sovereign of his state, has the right to deal with it in any manner he so pleases. Of course I have to note that I don’t remember any detailed plan from Thorin (or anyone really) as to how exactly they were going to get rid of the dragon (the story even points this out), but it seems clear that they wanted him gone.

        Lastly, on the dispute of ownership. The people around the mountain certainly recognized Thorin as the legitimate sovereign of the mountain and the dwarves as legitimate inhabitants and nothing in Smaug’s text implies previous ownership. In fact I believe he actually makes reference to taking the mountain by force, which is generally not considered enough to make you the legal sovereign of the land.

      • “nothing in Smaug’s text implies previous ownership.”

        But (if I remember correctly) that’s because nobody ever asked Smaug if he had any “rightful” claim to Erebor before they killed him. He had Erebor, and the dwarves wanted it, and since the dwarves’ company are telling the story, the dwarves’ claim is solid and Smaug is a monster who deserves what he gets. In realpolitik this is the way things work… the victors write the history and become the heroes of the story, and the losers aren’t there to point out discrepancies in the record and become horrible, evil creatures, greedy and cruel.

      • Realpolitik fully admits the reality of ‘legitimacy’ and ‘rights’ in politics, it would be insane not to. Even Bismarck made sure he had some kind of legal/political case to make for why his actions were right before he set forth to do those things.

        As for determining Smaug’s legal status, there are two excellent points against you’re argument. The first is that Smaug has a tendency to kill anyone who comes within distance of him which means that he rather clearly sees no point in attempting to provide his inhabitance with legal legitimacy and the second is that when a person actually does manage to get close to him (under the protection of invisibility) and briefly refers to him as a king he promptly replies that the person (Bilbo) is a liar.

        Even when given the opportunity to seek more formal legitimacy he still simply justifies it on the basis of ‘I am strong so everything here is mine’, an argument that definitely does not hold definite de jure weight otherwise we would have recognized the Union of Islamic Courts as the rightful government of Somalia instead of the Transitional Federal Government.

      • “As for determining Smaug’s legal status, there are two excellent points against you’re argument.”
        We’ll see how “excellent” they are.

        “The first is that Smaug has a tendency to kill anyone who comes within distance of him”
        So does North Korea. More notably, so do the elves of Mirkwood. And the trolls.
        “which means that he rather clearly sees no point in attempting to provide his inhabitance with legal legitimacy”
        OK. That proves that Dragon law is substantially different from Dwarven (or English) law, and under Dragon law “I’m strong enough to take this place and hold it against invaders” might create a possessory interest. It’s not exactly unknown in human history, either. See, e.g., the colonial period.

        “the second is that when a person actually does manage to get close to him (under the protection of invisibility) and briefly refers to him as a king he promptly replies that the person (Bilbo) is a liar.”
        For the simple reason that one doesn’t have to be a king, or even to have one, to be sovereign. Mostly, though, is the semantics: Bilbo considers Thorin the rightful King of Erebor, and is insincere in calling Smaug the king. Bilbo IS lying. But, if you switch to democracy, 100% of the current population of Erebor recognize the authority of Smaug, and 0% recognize the authority of Thorin.

        The fact that the transition in authority from Thorin to Smaug was violent doesn’t inherently invalidate the transfer; a successful coup d’etat can result in a stable government that is recognized by other sovereign powers. Sure, Smaug is a little bit oppressive in maintaining his power. So are plenty of other governments.

      • “They helped the Company get to the Lonely Mountain by providing boats and some provisions, but the men left them once they got to shore. One could possibly make an aiding and abetting argument, but I think it’s tenuous.”

        Sorry, I missed this earlier.
        Wrong context. Think a little bigger than criminal law here. Assisting military forces from a foreign power to invade is an act of war, and justifies open hostilities. i.e., flaming death from the skies.

      • I’m forced to say that I think you’re going to great lengths in an attempt to justify the ‘Smaug as sovereign’ concept even when it cannot be.

        In your real life example of North Korea, North Korea actually does have diplomatic relations with other nations. True, it does not have many relations but it does have them. North Korea, despite what news commentary might suggest, does not simply fire on anyone within range. True it acts with very dubious legality, but it still tries to make legal distinctions (i.e. only arresting people who stray over the border, only firing at territory it argues legally belongs to North Korea etc). It is because of those reasons as well as the presence of an existing government that orders society, enters into diplomatic relations with the outside world, has international trade and claims territory on basis of more than ‘we have an army’ that North Korea is considered a ‘rogue state’ and not ‘a pest’.

        Smaug has none of that. He does not enter into international relations, has no trade, establishes no laws nor attempts to actually rule over anyone, and the only claim he ever makes to territory is that he is powerful.

        The Soviet Union, Nazi Germany, Imperial Japan, imperialist United States, Prussia, Sudan, authoritarian Serbia all justified land grabs or fighting separatists on something more than just ‘we have a big army’, whether it was historical claims to the land, shared religion or nationality with the land’s inhabitants or even something as flimsy as being more technologically advanced and therefore claiming that this meant that the invader was better suited to own the land. Smaug never attempts to make any justification for why his ownership would be more just than the prior owners.

        Then there is the issue of state type. At the time Bilbo is speaking to Smaug inheritance-based nobility is the dominant type of rule in Middle Earth. While there may be some attempts at popular rule (such as the people of the town calling for Bard to be their ruler) that does not seem to be organized rule but rather a group abruptly demanding political change for this specific time. Then there’s the issue that it’s rather clear that, even if we do accept the idea that Smaug is a sovereign state for some reason, it’s blatantly not democratic and so the idea of basing it on democratic credentials is pointless.
        Also, frankly, no one else recognizes Smaug’s legal ownership of the mountain anywhere. The humans nearby think he’s a myth and their ancestors just thought of him as a very problematic creature. The elves never consider him to be a legitimate ruler through word or deed. Gandalf, an individual sent to Middle Earth to work on behalf of the only entities who might be said to have an absolute legal claim to it, never saw Smaug as a rightful ruler. Thorin, the proper king based on the recognized government at the mountain until Smaug arrived, clearly sees Smaug as an invading animal.

        Then there’s still the inescapable fact that Smaug, when called sovereign ruler of the mountain (no matter how insincerely) makes no effort to declare that he actually is the sovereign or that he has a special claim to the land from any past ownership, relation to the land or ability to properly administer. He bases his claim only on physical power. Physical power isn’t enough to be sovereign. If it were than the U.S. would have recognized the Taliban as the rulers of Afghanistan in the late 1990s.

        And incidentally, even if I did accept any of your arguments it still definitely wouldn’t make Thorin’s actions a coup. First he wasn’t part of Smaug’s ‘military’ nor Smaug’s ‘government’ and second Smaug wasn’t forcibly removed from power by Thorin but rather by Bard who was acting in self defense.

      • “Also, frankly, no one else recognizes Smaug’s legal ownership of the mountain anywhere”
        They do in the movie. Granted, we aren’t intended to look favorably on the rulers who do this, but the claim IS made that Thorin is not King under the mountain.
        Then, there’s the fact that only 13 followers rise up to follow Thorin on his quest, and not even all of them are dwarves. Given the legendary quality of dwarven loyalty, that kind of suggests that the rest of dwarfdom accepts Smaug’s occupation of Erebor.

        I think your other objections are rather silly. Smaug doesn’t rule democratically? He rules a kingdom with population of one, himself. Those elections are going to be quick. He’s an isolationist, and his foreign policy is “I won’t kill anyone who doesn’t bother me.” He burned a DMZ around his kingdom to discourage immigration.

        Finally, I didn’t characterize Thorin’s actions to attempt to oust Smaug as a coup d’etat, rather, I offered a coup d’etat as an example of a violent transfer of power that can nevertheless be quite valid and recognized by foreign powers. Smaug invades Erebor, converts its residents to corpses or refugees, and takes up residence as the sole occupant of Erebor… not entirely unlike the way white settlers came to occupy the North American continent.

      • “Raided, yes, but there’s no evidence he took treasure from Dale up to the mountain.”
        There’s the (possibly self-interested) testimony of the Men of Esgaroth, who demand a 1/12th share of the hoard as recompense for the gold taken from Dale by Smaug. Certainly not conclusive (and possibly heaqrsay, as well), but evidence it is.

        “Whoa, you can’t have it both ways. If Smaug isn’t a person then he’s just an animal (which would be my preferred theory anyway), and all of these issues disappear. He has to be a person in order for there to be any issue of repossession, burglary, or (therefore) felony murder.”
        Why can’t I have it both ways? Dragons are imaginary creatures, and thus may have the characteristics of dangerous animals yet be afforded rights that accord with their intelligence, requiring them to have it “both ways”. Clearly, orcs and trolls do not have rights in Tolkien’s world, but Elves, Dwarves, and Men do. Tolkien clearly leans toward the “animal” theory, but note that the Wizards do not act against the dragons unilaterally or directly… is this because they respect the dragons’ power, or their rights? No way to tell.
        Note that if Smaug is just a really smart animal, then Bilbo IS on the hook for damages to the Men of Esgaroth, and probably for felony murder, on the theory that provoking a dragon to attack the houses of others is arson (The defense that he wouldn’t be responsible for the criminal acts of another disappears if Smaug is just an animal, incapable of criminal acts.)

      • “I’m forced to say that I think you’re going to great lengths in an attempt to justify the ‘Smaug as sovereign’ concept even when it cannot be.”

        Having now re-read the book (as far as the battle of the Five Armies, anyway) there are two points:
        1) Smaug refers to himself as “King Under the Mountain” as he sallies forth to attack Esgaroth.
        2) The people of Esgaroth note that Smaug is the only “King Under the Mountain” that they’ve ever known. (Yes, they also note that Thorin has a claim to be king, but at the time of that assumption they assume that Smaug is dead; he hasn’t been seen in decades.)

        Thus, you have both internal and external recognition of Smaug’s sovereignty.

      • You’re taking the statement by the people of Esgaroth literally. I don’t think they meant “Smaug is a sovereign ruler and legitimate political entity, rightly able to conduct foreign policy and regulate the internal affairs of his kingdom.” I think they were speaking metaphorically: “Thorin is not the King under the Mountain. The only ‘King under the Mountain’ we’ve ever known is Smaug.”

        But anyway, you’re free to continue this digression, but we’ll be sticking to contract law in the posts. It’s clear that there just isn’t enough law or factual detail to come to solid conclusions on the other issues, especially when an issue like nation-state sovereignty.

  7. Could the contradiction be interpreted as Thorin waiving negligent liability while still accepting reckless liability? You mention that recklessness can’t be waived anyway, but if I am remembering my Tolkien correctly, Thorin is a king, thus with sovereign immunity, couldn’t he conceivably waive any level of liability he wants?

    • Interesting question, but… does Thorin have sovereign immunity for a contract made in The Shire?

      • At that point, Thorin is the head of a government-in-exile. There are multiple examples of such in common-law jurisdictions during WWII and after, providing legal precedents for his status. How did the UK and US courts handle this question?

      • After further thought, Thorin is wearing multiple hats, a few of which are crowns.

        He is the hereditary head of all the Longbeards, whether living in their own dwarf kingdoms or on land outside dwarven sovereignty. In this capacity, he presumably has sovereign immunity within Longbeard kingdoms, but his position outside them is unclear.

        As head of all the Longbeards, he is automatically also head of all the dwarves. It was in this capacity that Thrain was able to raise armies from all the dwarf nations to fight the orcs, but his authority over them had limits: they refused to go into Moria for him. Thus, this position is more like being head of an alliance than being sovereign.

        Thorin is also king in exile of several dwarf nations, including the Lonely Mountain, the Grey Mountains, Moria, and Mount Gundabad.
        These kingdoms have been occupied by his enemies for centuries, some of them for millennia, but the dwarves continue to claim all of them, though actually reclaiming any of them is beyond their unaided ability.

        Finally, Thorin holds territory in the Blue Mountains, his halls briefly referred to. He doesn’t use the title of king there, but he does seem to be sovereign.

      • I think you misunderstand. U.S. courts are deferential to the United States as sovereign; you can’t sue the U.S. in a U.S. court unless the U.S. decides to let you. The fact that Joe is the sovereign leader of Joeistan means that he can be immune from suit in Joeistan, but it doesn’t give him sovereign immunity in the U.S.
        The converse problem is jurisdiction. If someone in Joeistan wins a money judgment in a Joeistan court against someone in the U.S., can it be enforced? This is an example of complicated treaty law. If the countries are not the sort who cooperate with each other, then winning a money judgment against Joe in a U.S. court will only allow you to pursue Joe’s assets that are in the U.S.
        So, if Thorin is sued in a Shire court, he does not have sovereign immunity, because he is not sovereign in The Shire. However, he also has few, if any, assets in The Shire, meaning that Bilbo is probably left without effective recourse if Thorin stiffs him on the contract, unless Bilbo can raise an army or two.

  8. I was rereading http://lawandthemultiverse.com/2012/06/01/damage-control-suits-against-foreign-governments/ and an interesting quote popped out at me: “suits against foreign states were not available at common law at the time of the Seventh Amendment’s ratification in 1791″

    Even that aside, it should be noted that, if successful (no spoilers! >_> (that’s a joke)), the fulfillment of the contract and thus presumably the distribution of the reward would be taking place within the Lonely Mountain, i.e. Thorin’s kingdom. If Bilbo doesn’t want to get screwed over, he should probably presume dwarven jurisdiction, even if he could theoretically make a case for Shire jurisdiction, unless Thorin specifically consents to Shire jurisdiction (which I find a bit unlikely).

    Of course, since this post mentions that there’s more boilerplate to cover, perhaps there’s a governing law/jurisdiction clause that hasn’t been mentioned yet, in which case we can just see which way that swings. Is the full text of this contract available online somewhere, or does one have the buy the prop replica?

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  11. Well, I’m no lawyer, but I’d be very uncomfortable describing Smaug as merely a dangerous animal. He seems clearly capable of reason, and as a “rational animal” would be considered a person by any Western philosopher until quite recent times.

  12. Pingback: The Hobbit Contract, Part 3 | Law and the Multiverse

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  14. I’m not a lawyer, but I find your worry over whether the contract might be invalidated because it deals with illegal subject matter – namely theft – to be somewhat anachronistic, since you fail to remember or acknowledge that for most of human history theft itself was often given a legal basis. For most of human history, the principle reason for going to war was to obtain “booty” via “plunder” where both terms were legally defined and recognized under the law and quite complex laws or contracts governing its division could exist. Indeed, while Thorin is attempting to obtain what he believes is rightfully his, it would not matter to much for the purpose of the contract whether he had no right to it. Thorin, a member of the Dwarven noble class, has legal right to wage war and obtain plunder from any third party of his choosing, laying claim to whatever articles that come into his reach by right of arms. Likewise, on the high seas it was the established practice for centuries to issue a letter of Marque to private citizens for the purposes of giving them a legal right to engage in theft on the high seas as a Privateer. It seems likely from the text that the terms like “Burglar” and “Purloined” are in this case not specially defined by the contract at all, but recognizes Bilbo’s status as one who has the legal right to obtain by stealth the sort of things a mercenary or Privateer would have the legal right to obtain by force. This position appears to be one well recognized within the larger culture that the agreement takes place within. In other words, it seems likely that the contract asserts that if Bilbo acquires something from a third party during this undertaking, the Dwarven Kingdom of Erebor will recognize it as, “stolen fair and square”, and that the action was taken on Thorin’s behalf, and neither attempt to divest him of it nor hear suits from the aggrieved party against him. (But with the general understanding that if he is caught in the act, he’s on his own. ) The larger issue here is that historically, jurisdictions did not recognize taking things from a third party to be theft if the third party was outside of the sphere considered ‘civilized’ (or allied) with the jurisdiction or if the third party was a formally declared enemy.

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