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
On 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.