Monthly Archives: January 2013

Our Interview with Daniel Reeve

Daniel Reeve is an artist and calligrapher who created the maps and calligraphy for the Lord of the Rings and Hobbit films, including the contract from The Hobbit: An Unexpected Journey.  You can read our analysis of the contract in this series of posts.  After a commenter pointed us in his direction we contacted Mr. Reeve, and he agreed to an interview.

Copies of the contract from The Hobbit

Law and the Multiverse: You created much of the calligraphy and maps for The Lord of the Rings films and now The Hobbit films. How did that working relationship come about?

Daniel Reeve: I had read Tolkien’s books as a teenager, and had tinkered with calligraphy – including elvish calligraphy and runes – ever since then, so when I heard that The Lord of the Rings was being made into a film, practically on my doorstep, the opportunity was too good to miss. I submitted some samples of elvish calligraphy to the film company; they phoned me immediately, and the next thing I knew, I had the job of doing all the calligraphy for the films. This immediately expanded to include maps and other graphics; and expanded even more in The Hobbit, where I create much of the artwork seen in the films, as well as the usual calligraphy, books, scrolls, parchment, inscriptions, maps, etc.

LatM: The contract in the book is quite short, just 44 words for the essential terms. How did that become the multi-page contract in the movie?

DR: I set about creating a simple document using text taken directly from Tolkien’s book, and using a dwarvish-looking calligraphic style that vaguely resembled the runes which they use for most purposes. This first version was about A4 size (though not the shape of A4 – we avoided that distinctive width/height ratio in all documents, so that Middle-earth wouldn’t look like something from our own era.)

The feedback from PJ & co. was that they wanted more text. Add a clause or two. Make it longer.

So I prepared version 2, and I also started playing with possible signatures to be added at the bottom.

The feedback: “More text, please; let’s try two pages. And could we have the signatures more ‘Elizabethan’-looking.” I duly created version 3, as well as a raft of possible signatures for Balin, Glóin, Thorin Oakenshield, and of course Bilbo Baggins.

They selected a signature for each character, but the main message coming back continued to be “More text!”

I drew up version 4….

“More text! Complicated, long-winded clauses! Fine print!”

I added finer print to all the available gaps in version 4, but I could see where this was heading….

“More text! Finer print!”

Right. Okay. You want lots of text, I’ll give you lots of text! We decided it should be a long scroll – so long that several pieces of parchment would have to be stitched together, in order to be able to fit all the clauses in. And then numerous addenda, riders, extra clauses could be added as extensions to the sides, folding out to be read. And the Contract would be written in a different style, quite a dense calligraphy, but not as hard to read as blackletter. I devised a writing style, and experimented with widths and lengths of parchment, and arrangements for the side additions.

I invented all kinds of original weird and wonderful clauses and conditions; then scoured every contract and agreement I could lay my hands on (including my own contract with the film-makers) and borrowed and re-worded and invented some more, until eventually I had filled the parchments. In fact there were two more side bits that were eventually discarded – but certainly the final document was wordy enough to bamboozle, flummox and overwhelm any poor hobbit or other potential burglar.

The Hobbit Contract

The contract from The Hobbit: An Unexpected Journey

LatM: While some parts of the contract appear to be drawn from a modern contract, other parts are clearly original. Did you consult with an attorney in writing the contract or go it alone? Did you look at any old contracts for inspiration or wording? Was the lengthy and lop-sided nature of the contract a little inside joke about the equally lengthy and lop-sided nature of film contracts?

DR: The Contract had to include the lines from the film script about “lacerations, evisceration, incineration”; but apart from that, I created the entire contract without consultation. From a film-making point of view, the actual wording was unimportant, the whole thing being basically a visual gag about the ridiculous length and complexity of the contract, and the fact that a contract was needed at all! Knowing how it was likely to be shot, you might think that I could just as easily have written greeking text; lorem ipsum, etc – there was certainly no need to resort to (or pay for!) consulting an attorney, let alone the time factor. But as with all things in these films, authenticity and attention to detail are called for, and pay off in the end. Besides, you never know whether the director will decide to shoot a close-up of this or that on the day. And it’s easier – and more satisfying by far – to write stuff that actually makes sense.

I naturally started with the essence of Tolkien’s original – where Bilbo’s entitlement to one fourteenth of the profits are promised, funeral arrangements and travelling expenses are provided – and expanded it in the same vein. Both the book and the film script called for the comical aspect, so I invented all sorts of absurd clauses, being as original as possible, and wrapping them in as much legalese as I could think of. Why say in one word what you can expand to three or four?! So the in-jokes came thick and fast, including reference to my own contract with the film company, and re-wording the typical standard clauses and boilerplate from real contracts, both modern and old.

It’s lengthy, lop-sided, repetitive; and – as in real contracts, it seems to me – the devil is in the detail. Always read the fine print!

LatM: How many original props did you have to create for the movie? Did you get to keep any?

DR: I have created many, many original movie props and set dressings for these films; but you never get to keep anything, of course. Everything belongs to the film companies, and often has a future in exhibitions of film paraphernalia. And in the case of the Contract, as merchandise for fans.

LatM: To me, the long contract spilling out page after page with its multiple fold-outs is a comic scene, but it also says something about dwarven culture, or at least about the Company, namely that they want everything properly specified and well ordered. How else did you try to capture the dwarves’ personality in the contract?

DR: The lettering style has a few rune-inspired features. And there’s a kind of grasping, greedy aspect not only in the content of the Contract, but also in the way that every available space is used, filled with smaller and smaller writing, rather than using more of that expensive parchment.

LatM: In your mind, which member of the Company actually wrote the contract (i.e. who put pen to paper)?

DR: Balin is the scribe of the group, and the one familiar with legal matters. The film script writers assigned different characteristics to each of the dwarves, to help make them easier to identify; so the Contract is definitely written by Balin.

LatM: The contract has a unique style. It’s very comprehensive, but it’s also sort of scattered, with a lot of afterthoughts and marginalia. How did you develop it? At least one commenter has suggested that the marginal notes and addenda may reflect that the contract was written by a committee of 13. Do you see some parts as coming from different members of the Company (e.g. the part about fire safety officers coming from Glóin and Óin, the best fire makers in the Company)?

DR: I certainly thought of this as being a collaborative effort, from the various members of the Company. Balin – partly in consultation with Thorin – would have first set down all the main clauses of the Contract. But they and the others would realise they’d left out this or that, and add it later. And as it became more complex, they would forget that some things were already set forth, and would add them again – this explains some of the repetitions.

This haphazard, scattered construction, with the afterthoughts and marginalia, also reflects how it was really written! Because I would realise that I still needed more text to fill the thing up, so I would put my thinking cap on and come up with additional clauses.

***

Thanks again to Daniel for a great interview!  For the collectors among us, two versions of the contract are available for purchase: a hand-made replica from Weta and a less detailed version from the Noble Collection.

Green Arrow # 77

This week we return to our ongoing series on the Green Lantern/Green Arrow collaboration from the early 1970s. The conceit for this story line was set up in the aftermath of issue # 76, in which Green Lantern and Green Arrow worked together to bring down a corrupt landlord. Hal Jordan, working for the Guardians of the Universe as the Green Lantern assigned to Earth, is a law-and-order type temperamentally inclined to side with the authorities and the status quo. But Green Arrow is largely concerned with social injustice and perceived oppression, i.e., where the legal conflicts with the moral. So when the two meet, and Jordan gets it into his head that there might be something to the idea that what is legal is not always what is just, the Guardians decide to send Jordan off with Green Arrow and a Guardian observer to find the “real America” and maybe learn a thing or two in the process.

In issue # 77, the trio arrives in the fictional town of Desolation, located somewhere in the Rocky Mountains. Desolation is a mining town which still seems to operate on something approximating the company town model, wherein the town’s largest employer is not only a business, but essentially owns and operates all of the businesses in town. In some instances, the operating company became the de facto or even the de jure government for a town.

This issue is a mess. It’s both legally and historically problematic, but even worse, it seems to get the basic ethics of its central lesson arguably wrong. Let’s take a look. Continue reading

Transformers: Immigrants in Disguise?

This month’s Subculture for the Cultured column discusses the Transformers and immigration law.  Check it out!

Our Interview with Mark Waid

We are very excited to present an interview with Mark Waid, the Eisner Award-winning writer of Daredevil and many other excellent comic books (including Kingdom Come and its follow up The Kingdom, both discussed here) as well as the co-founder of digital comics site Thrillbent. We met Mark at New York Comic Con last year and he was gracious enough to let us interview him for Law and the Multiverse.

Law and the Multiverse: As a writer, what parts of the legal process offer the most dramatic potential? What kind of scenes do you most enjoy writing?

Mark Waid: As a writer, it’s the trial itself that offers the most dramatic potential—but as a COMICS writer, it’s actually the LEAST dramatic, because it’s just dialogue and talking heads and people in ordinary street clothes, so I have to keep the actual courtroom stuff in Daredevil to a minimum. That means the real drama—and the scenes I enjoy writing the most—are the ones where Matt Murdock is using his super-senses to assess the claims of his clients, whether by screening their heartbeats and chemical tell-tales to see if they’re being truthful, or by investigating their claims in his super-hero guise.

LatM: Sometimes comics explain away tricky legal issues with fictional laws (e.g. DC’s fictional Twelfth Amendment allowing superheroes to testify in costume). We haven’t seen a lot of that in Daredevil, but are you free to do that? If so, are you ever tempted to, or does it feel like taking the easy way out?

MW: I’m not above using those fictional laws if backed into a corner, but honestly, I worry that it gets a little boring sometimes to work that hard to ground EVERYTHING in reality. A little suspension of disbelief is part and parcel of the entire genre. Remember, if you envision the entirety of the super-hero conceit, all 75 years of it, as an inverted pyramid, it all rests on one point—that a pair of eyeglasses is an effective disguise.

LatM: As an aside: there does not seem to be an explicit, canon explanation of the legal status of intelligent non-humans in the Marvel Universe (e.g. the Skrull). So if you ever wanted to create a fictional law or Supreme Court decision addressing that issue, it would answer a lot of questions for us!

MW: I will be in touch to help get it drafted. That IS a nifty idea.

[Ed. note: gasp!]

LatM: Do you ever see Matt Murdock working in the district attorney’s office? Or would trying to prosecute a villain that he fought as Daredevil be too much of a (personal) conflict of interest?

MW: It seems like too much of a conflict of interest–and it also grates against what I believe to be a huge conceit of the book and of the character, that Matt Murdock fights for the underdog. In fact, if it hasn’t already been done—and I fear that it may have—I’d love to do a story where Matt was forced to DEFEND someone that Daredevil brought down.

LatM: Along those lines: would he take a job at a big firm? Maybe Goodman, Lieber, Kurtzberg, & Holliway?

MW: Again, underdog. Scrappy li’l underdog. Also, Matt’s billable hours are DEPLORABLE.

LatM: And speaking of GLK&H, will we ever see Matt and Jennifer Walters together in the court room?

MW: I’ve been trying to get to that point for a while now! Still talking to Dan Slott about his thoughts….

LatM: Might we learn more about Murdock’s time at Columbia law school at some point? Possibly meet some of his old classmates?

MW: Yes, absolutely. We’ll be doing more flashback material in Year Three.

LatM: Where did Murdock and Nelson go to college? Did they know each other there? And how did they get from college to law school? Was that something they had planned all along?

MW: I’ve fudged continuity a bit now to establish that Matt and Foggy met in law school. I look forward to your angry letters.

LatM: Do you ever incorporate things from the news or current events into your stories? What’s the process of translating something like that onto the page?

MW: Oh, dear God, do I ever. My Evernote and Pocket files are FULL of those kinds of stories–wrongful termination suits (which begat issues 4-6), stories of cruel and unusual punishment (issue 10.1)…and the entire Omega Drive story arose directly from the Julian Assange charges…every week I see some story of justice gone wrong or someone trying to game the system and I can’t wait to fictionalize it, amp up the stakes a little bit to make it a little more “super-hero-ey,” and throw Matt at it. Illegal geoengineering and anti-bullying mob justice mistakenly targeting the wrong perp and destroying his life are two examples of things I’ve clipped from the web in the last month and will find a use for.

LatM: Which comic book attorney would you rather have for a lawyer: Matt Murdock, Foggy Nelson, Jennifer Walters, or someone else?

MW: Dude, Matt’s awesome in the courtroom but lousy at research and at keeping reliable hours. Foggy has problems of his own right now. And Jennifer Walters would be great, but she scares me. Give me the Earth-2 Dick Grayson–you can’t get more reliable and forthright than a lawyer who used to be Batman’s partner!

***

Thanks again to Mark for a great interview.  And as always we look forward to the next issue of Daredevil!

The Money Pit

The Money Pit is a 1986 film directed by Richard Benjamin and starring Tom Hanks and Shelley Long. Hanks plays Walter Fielding, a young New York entertainment lawyer, who with his girlfriend Anna (Long) are forced to find a new place to live on short notice when Anna’s ex-husband returns from Europe, tossing them out of his apartment, where they had been living. They discover what appears to be a lucky break in the form of a stately old mansion which is being forcibly sold to pay for legal fees.

Walter is himself in fairly hot water when the movie begins. Sometime prior to the events of the film, his father, a former partner in what seems to have been a father-and-son law practice, absconded with $2.9 million in client funds. It’s not clear precisely how this was done, but the substance of it seems to be that he made off with the firm’s trust account. Walter is left paying the bill.

To secure the sale of the house, Walter borrows $200,000 from a client. The client happens to be a minor and a stupidly successful pop star, so he can afford it.

So the questions here are (1) whether Walter really would be left to pay his father’s debts, and (2) whether it’s legal and ethical to borrow money from a client under those circumstances. Continue reading

The Hobbit Contract, Part 6

It’s been a long series, but we’re finally at the end of the contract, or at least of interesting parts to write about.  If you’re just joining us, here are links to parts one, two, three, four, and five.  In today’s concluding installment we’ll be talking about a few miscellaneous provisions and giving some thoughts on the contract as a whole.

I. A Security Interest

In an unusual change of tone, the contract contains a clause that is not in the Dwarves’ favor but rather in Bilbo’s:

If, however, Company does not make good on payment herein set forth, Company becomes liable for the whole amount, to give to Burglar, making the stipulation, the penalty of the double of the said amount, the aforesaid conditions remaining as settled.  Furthermore, Company pledges to Burglar as security for the aforesaid promises all its goods existing and future.

This is a remarkable clause for two reasons (and not counting the semi-incomprehensible middle section).  First, apparently the Dwarves have volunteered to be liable for a total of a 3/14ths share if they fail to pay Bilbo a 1/14th share in the proper way (in gold of correct weight or in other payment of good quality and correct and proper measure) and in the proper time (within one year of the completion of the Adventure).  Second, the Dwarves pledge the entirety of their assets (or at least their tangible goods) as a security interest not just for the payment but for all of the promises made in the contract (e.g. provision of a pony, meals, etc).  Given how lop-sided the rest of the contract is, this is a most generous set of terms.

Or is it?  It could be that the Dwarves realize that if they fail to pay Bilbo it’s probably because they didn’t realize any significant profits.  And it’s not clear that the Company (as opposed to the Dwarves individually) has any substantial assets at the outset of the venture.  Each member of the Company seems to have brought their own tools, weapons, etc.  It’s also possible that the Company already pledged its assets as security in an earlier transaction, giving another party priority over Bilbo.  So this could be a hollow promise in more ways than one.

II. A Survival Clause

There is a curious clause that is repeated throughout the document, both in the main text and in the addenda and margins:

All conditions imposed herein are deemed to survive loss or destruction of this document, whether by accidental of wilful mishap, fair means or foul, and any reconstruction, re-wording, updating or improvements or additions made shall include a condition similar to this condition, notwithstanding any repetition  redundancy, overstatement or implication hereby recognized or disclosed.

This is an odd clause because the loss or destruction of a writing does not void the contract.  In fact, not only is the contract still valid, but “The loss or destruction of a memorandum does not deprive it of effect under the Statute [of Frauds].”  Restatement (Second) of Contracts § 137.  If the original is lost then the contents of the contract can be proven via an unsigned copy or by oral evidence.  I suspect, then, that this clause is really included for humor rather than for (fictional) legal effect.

III. Ownership of the Ring

Given the clauses describing ownership of the recovered goods, one might wonder whether the Company has a claim to the One Ring.  After all, Bilbo has expressly agreed that he has only a right to 1/14th of the profits, to be paid in a form determined by the Company, and no right to the treasure itself.  So could it be that the One Ring merely forms part of the treasure?  The contract seems to indicate otherwise.

First, the contract describes the extraction of goods from the Lonely Mountain as being the subject of the Adventure, whereas the One Ring was found underneath the Misty Mountains.  Second, the contract includes this clause:

Specialist equipment required in the execution of duties in his professional role as Burglar shall be purchased, procured, purlioned [sic] or obtained by Burglar, by whatsoever method Burglar sees fit.

The One Ring is definitely “specialist equipment” and it turns out to be required in the execution of Bilbo’s duties in his professional role as Burglar.  Certainly he could not have defeated the spiders, evaded the Wood Elves, or snuck past Smaug without it (possibly only the last counts as proper burgling, but the point stands).  So the Dwarves would not appear to have any claim to the One Ring.

I probably would have left out the “purloined” part, though.  That comes dangerously close to making the contract unenforceable on the grounds that the subject matter of the contract is illegal.

IV. Closing Thoughts

One the whole the contract is pretty well written.  There are some anachronisms, unnecessary clauses, typos, and a small number of clear drafting errors, but given the contract’s length and its role in the film (which is to say not a huge one, especially in the particulars) it’s an impressive piece of work.  I do wish there had been less material obviously taken from a modern film contract*, but I can understand cutting a few corners here and there, and at least the filler is more-or-less apropos.  I congratulate prop-maker and artist Daniel Reeve on a strong piece of work.  A lesser studio or artist might have been tempted to go with several pages of lorum ipsum written in Cirth.  If you’d like an even more accurate replica of the contract, Weta’s online store has a version with hand-made touches by Mr. Reeve.

* If you have a copy, check out the larger of the two fold-outs.  Almost all of it could have come straight out of a film contract.

The Atrocity Archives

The Atrocity Archives is the first volume in Charles Stross’s Laundry Files series. It consists of the novella “The Atrocity Archive” and the short story “The Concrete Jungle.” The premise is that not only are Lovecraftian horrors and other things that go bump in the night real, but they live way down at the bottom of the Mandelbrot set and may be communicated with and/or invoked by computation. The main character is an operative in the British agency known as “The Laundry,” and was drafted in to the agency when he inadvertently discovered the means of invoking an Egyptian god as part of his dissertation research. Many people wind up in the agency in a similar means. Whenever someone stumbles on this sort of knowledge, the appropriate agencies make an offer: work for us, or never publish anything ever again. The name of one course offered to employees of the Laundry is “Computational Demonology.”

You get the idea.

The stories raise several issues for our consideration. First, whether it is illegal to invoke the Elder Gods or other eldritch abominations. And second, whether it is legal for there to be secret laws. Continue reading

The Hobbit Contract, Part 5

After the first four parts of our ongoing series about the contract in The Hobbit movie we’re finally entering the home stretch.  Today we’ll take a look at a group of clauses dealing with disputes arising under the contract.  This is an important part of many contracts.  If you’re going to the trouble of creating a formal legal agreement, then you might as well contemplate what might happen if the deal goes bad.

I. Mandatory Binding Arbitration

Somewhat anachronistically, the contract contains an arbitration clause:

Disputes arising between the Contract Parties shall be heard and judged by an arbitrator of the Company’s choosing

I say “somewhat anachronistically” because although arbitration has a long history in the common law—going back at least as far as 1609—it was for centuries frowned upon by the courts.  One early case, Vynior’s Case, held that mandatory arbitration clauses (i.e. requiring a party to a contract to submit to arbitration) were revocable.  In other words, parties could submit to arbitration but only by ongoing, mutual agreement.  It was not until the 1800s that mandatory arbitration really became acceptable in either England or the US.  See, e.g., Burchell v. Marsh, 58 U.S. 344 (1854).

The other issue is that the clause allows the Company to choose the arbitrator.  This is highly unusual and may actually invalidate the arbitration clause.  In order  to comport with due process, a mandatory arbitration agreement must, among other things, provide a neutral, impartial decision maker.  Typically this is done by allowing the parties to jointly select an arbitrator or to have an impartial third party (such as an arbitration agency) select one.

II. Choice of Language

The next part of the arbitration paragraph is a rarity for an American lawyer:

… and all pleas shall be pleaded, shrewed [sic], defended, answered, debated and judged in the Dwarvish Tongue

Obviously this is a significant disadvantage for Bilbo, as he evidently cannot read (and presumably cannot speak) Dwarvish.  Choice of language clauses like this one are much more common in international contracts than in contracts between parties in the United States.  They are also much more common in contracts that contain arbitration agreements rather than forum selection clauses (e.g. “any disputes arising under this contract will be heard in the courts of Capital City, State X”) because in most many countries the courts only deal in one official language, making a choice of language clause redundant.  But when the case will go to arbitration, the chosen arbitrator could potentially speak multiple languages.

However, the most common reason for a choice of language clause is when the contract itself is translated into multiple languages for the benefit of the parties.  In that case it is common for the contract to specify that one version is the “authoritative” version

III. The (Non-Existent) Choice of Law Clause

The one thing that leaps out at me about this contract is that it doesn’t contain a choice of law clause.  Such a clause allows the parties to specify what jurisdiction’s law will govern the contract.  This is particularly useful when multiple jurisdictions may potentially apply.  The area of the law that deals with figuring out which court has jurisdiction and which law applies is known as conflict of laws.  Conflict of laws is a complex subject.  Typically it is a stand-alone course in law school.  So we won’t go into too much detail here, but suffice to say that arguably both the law of the Shire and the law of the Dwarven Kingdom could conceivably apply to this contract.  Some of the factors that a court might consider include:

  • The parties are a Hobbit of the Shire and a group of Dwarves.
  • The contract was signed in the Shire.
  • The contract concerns services to be performed in the Dwarven Kingdom.
  • The most likely source of the breach of the contract occurs in the Dwarven Kingdom.

Since the applicable law is debatable, this is precisely the kind of case in which a choice of law clause makes sense, so its absence is notable.

IV. Attorneys’ Fees

Finally, the contract includes a clause regarding attorneys’ fees*:

In the event of a dispute arising in relation to the terms of this agreement, the non-prevailing party shall reimburse the prevailing party for all reasonable fees and costs resulting therefrom.

This clause is notable because it tells us something about the (actual, non-fictional) writer of the contract.  They were very likely either been an American or at least were copying from an American contract.  In essentially every other Western country, the default rule is that the losing side pays (or at least contributes to) the winning side’s costs.  This is commonly called the English Rule, in contrast to the American Rule in which each side bears its own costs by default.  There’s nothing unusual about a clause like this in an American contract; in fact, they are pretty common.  But I think it would be unusual elsewhere.

* The precise spelling of “attorneys’ fees” is a matter of some dispute.  See Communities for Equity v. Michigan High School Athletic Assoc., 2008 WL 906031, n.1 (W.D. Mich. 2008).

We’ve probably only got one or two more posts about the contract to go.  If any of our readers have questions about the contract (maybe you bought a copy or read about it elsewhere) please let us know before we wrap up the series and we’ll try to include it.

The Hobbit Contract, Part 4

The first three parts of our ongoing series about the contract in The Hobbit movie have already taken us through a variety of contract law topics.  At this point, unless there’s a strong call to go through the entirety of the contract, we are going to start skipping less interesting clauses in favor of ones that present new or more complex issues.

I. Signatures and Witnesses

At the beginning of the second ‘page’ of the contract we have this paragraph:

The principles [sic] agreeing to this contract, namely the Company [as represented by Thorin Oakenshield] and the Burglar, and known collectively henceforth as the Parties, shall signify their agreement to all clauses contained herein [the Conditions of Engagement] by signing or making their marks in the spaces provided for so doing, and affixing seals if applicable.  The Witnesses to this Contract, being those others whose signatures, marks or seals are affixed hereto, affirm, state and declare their understanding and unbiased agreement to all that is contained herein.

This language is a little unusual.  Contracts—at least modern ones—do not normally specify the signature process in such detail.  But there’s nothing inherently wrong with it, either, apart from the misspelling of ‘principal.’

The signature clause states that the parties may “sign or make their mark.”  This is correct.  There is no legal requirement that a signature be the signer’s name, much less the signer’s name handwritten in cursive.  Instead, “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.  A mark or even an affixed seal could suffice.

Most legal documents do not require witnesses unless they require them by their own terms.  One notable exception is a will.  The exact requirements vary by jurisdiction, but most require that wills be witnessed, typically by disinterested parties.  In this case a witness signature does not seem to be required in order for the contract to be valid, but it’s not a bad idea in case there is a dispute later.  It is curious, however, that the witnesses (in reality the witness, since only Balin appears as witness) “affirm, state and declare their understanding and unbiased agreement” to the contract.  It’s unclear what, if anything, the contract requires a witness to agree to.  The role of a witness is usually not to understand and agree to the contract but rather to witness the signing by the parties: did the parties sign, were they the correct people, were they mentally competent, etc.  So this paragraph is a little odd but probably harmless.

II. Written Contract Required?

Relatedly, one might ask if a written and signed contract was necessary at all.  Some types of contracts must be in writing.  The Statute of Frauds refers collectively to laws that list the kinds of contracts that must be in writing.  Although the Statute of Frauds got its start in England in 1677, it has since been almost entirely repealed there while it has grown more influential in the US.    But the most substantial repeal of the Statute of Frauds in England didn’t occur until 1954, well after The Hobbit was written, and so Tolkien may have contemplated some sort of Statute of Frauds existing in Middle Earth.

However, none of the traditional Statute of Frauds categories likely apply in this case.  The closest category would be contracts that cannot be performed in one year, but the adventure was complete within the year 2941, not counting the return trip.  Thus, the contract could be performed within a year.  Note that it’s not contracts that might not be performed in a year but rather contracts that cannot be performed in a year.  An example would be if the contract said something like “the Parties shall leave for the Lonely Mountain two years from the signing of this contract.”

III. Non-disclosure Agreements

Next we have a non-disclosure or confidentiality clause:

Confidentiality is of utmost importance and must be strictly maintained at all times.  During the course of his employment with the Company, Burglar will hear, see, learn, apprehend, comprehend, and, in short, gain knowledge of particular facts, ideas, plans, strategies, theories, geography, cartography, iconography, means, tactics and/or policies, whether actual, tangible, conceptual, historical or fanciful.  Burglar undertakes and agrees to maintain this knowledge in utmost secrecy and confidentiality, and to neither divulge nor make known said knowledge by any means, including but not limited to speech, writing, demonstration, re-enactment, mime, or storage and retrieval within means or apparatus currently known or unknown or as yet unthought of.

(It is a plain drafting error to refer to “the course of [the Burglar’s] employment with the company”, since a later clause specifies in no uncertain terms that “Burglar is in all respects an independent contractor, and not an employee … of the Company.”)

This confidentiality agreement is a little overbroad, since by its strict terms it requires Bilbo to keep confident anything he learns on the journey, not just things he learns in confidence.  The fact that information is already publicly known is usually a defense to a breach of confidentiality, since the information wasn’t actually secret.  Overbreadth probably isn’t fatal to the clause, however.

What’s really unusual about this part of the contract is that it doesn’t appear to include a clause acknowledging that monetary damages alone would be inadequate compensation in the event of a breach of confidentiality.  The purpose of such a clause is to make it easier to obtain an injunction ordering the breaching party to stop disclosing the confidential information.  Ordinarily breach of contract results in a payment of monetary damages, and getting an injunction usually requires showing, among other things, that those damages are insufficient to remedy the harm done.

What’s doubly weird about this is that the contract does have this clause later on:

Burglar acknowledges that monetary damages alone will be adequate compensation for a breach of this contract by the Company.

We’ll talk more about this clause in a later post, but it’s curious that the contract only contemplates injunctions defensively (i.e. protecting the Company from them) and not offensively (i.e. making it easier to enjoin Bilbo).

Green Lantern # 76, cont’d

Returning to Green Lantern/Green Arrow # 76, which we started looking at last month, we find two more issues to discuss. First, whether the tape recorder Green Arrow set up would have been admissible if it had worked, and relatedly, whether Green Arrow can testify to the contents of the tape even if it’s broken. Second, whether the arrest of the villain at the end of the story is legitimate. Continue reading