Ghost Rider, the Devil, and Bearer Paper

The 2007 Ghost Rider movie was neither a particularly good movie nor a particularly good source of legal themes, but there was one interesting observation we seized on.  Spoilers ahead, though I doubt many tears will be shed over spoiling Ghost Rider.

I. The Setup

In the movie, Mephisto (one of many devils in the Marvel universe) has a habit of making Faustian bargains.  When it comes time to collect he sends his henchman, the Ghost Rider, with whom he has also made a pact, albeit one he has to enforce himself, of course.  The precise terms of these contracts vary but the practical upshot is always the same: the devil gets your soul, from which he can derive power.  The movie is centered around the fate of a particularly valuable contract for the souls of an entire town, one thousand in all, which Ghost Rider’s predecessor had hidden rather than give up to Mephisto.

So far this is fairly standard stuff.  The twist comes from the fact that there are warring factions with Marvel’s demonic community, and Mephisto’s son Blackheart wants the contract for himself.  In fact, he manages not only to get the contract but to collect the souls bound by it.  And this brings us to the interesting part.  If the contract was with Mephisto, how could just any demon who got ahold of it cash in on the deal?  The inescapable conclusion is that demonic contracts must be redeemable by the bearer.

II. Bearer Paper

For an attorney, the idea that jumps readily to mind is “bearer paper.”  Bearer paper is a kind of negotiable instrument, which you are probably familiar with in the form of checks and money orders.  You’re probably also familiar with bearer paper: you create it any time you make a check out to “cash,” for example.  As the name suggests, bearer paper is payable to the person bearing (i.e. physically holding) the bill, note, check, etc.  This is convenient, but also dangerous, since it becomes much easier for a thief (or an upstart young demon) to cash it.

So could Mephisto’s contract have been bearer paper under US law?  The first thing to consider is whether the contract could have been a negotiable instrument at all.  As defined in the Uniform Commercial Code, Article 3 (which has been adopted by most states):

“negotiable instrument” means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:
(1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
(2) is payable on demand or at a definite time; and
(3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain (i) an undertaking or power to give, maintain, or protect collateral to secure payment, (ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral, or (iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor.

That’s a lot of text, but the basic rule is that a negotiable instrument needs 1) a fixed amount of money, possibly with interest; 2) a payee (i.e. the person getting paid, which can be the bearer); 3) a payable date, which can be “on demand” (i.e. whenever the payee wants) or a specific date; and 4) it generally can’t have any other conditions attached to it (e.g. no fair saying “Pay to the order of Bob if he paints my house.”).

And there’s the rub.  Mephisto’s contract is for souls, not money, and it plainly has some additional conditions on it (e.g. whatever it was Mephisto did for the people of San Venganza in exchange for their souls).  Of course, this is according to modern US law.  The contract was drawn up in the 19th Century.  Can we do better under the law of the time?

III. The Uniform Negotiable Instruments Law of 1896

The Uniform Negotiable Instruments Law was the predecessor to the Uniform Commercial Code, and like the UCC it was broadly adopted.  The UNIL or something like it was probably the law of the land at the time the contract was formed.  As luck would have it, its definition of a negotiable instrument is a bit looser than the UCC’s:

An instrument to be negotiable must conform to the following requirements:
1. It must be in writing and signed by the maker or drawer.
2. Must contain an unconditional promise or order to pay a sum certain in money.
3. Must be payable on demand, or at a fixed or determinable future time.
4. Must be payable to order or to bearer.
5. Where the instrument is addressed to a drawee he must be named or otherwise indicated therein with reasonable certainty.

This gets us closer.  The UNIL allows a negotiable instrument to be made for a promise rather than only money.  But that promise has to be unconditional, which means it can’t be something like “I promise to give the bearer of this contract my soul if Mephisto grants me three wishes.”  That pretty well spells the end of the bearer paper idea.  Presumably the infernal legal system is more flexible in this regard, although one wonders why Mephisto would be so foolish as to draw up such a contract in the first place.  Somebody ought to get that guy a lawyer.  One presumes he has ready access to plenty of them.

IV. Sidenote: The 13th Amendment

The 13th Amendment prohibits slavery and involuntary servitude.  However, it’s questionable whether Mephisto’s contract could be voided on that basis, since the damned are dead and have no rights.  Further, US courts have been reluctant to exert jurisdiction over the Devil.  See United States ex rel. Gerald Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D.Pa. 1971).  Anyone considering entering into a pact with the Devil should definitely bear in mind that it may be difficult to obtain relief in court should the Devil prove less than trustworthy.