Once Upon a Time

Like Grimm, Once Upon a Time is a show that blends fairy tales with the modern world—and brings up some interesting legal issues along the way.  Although Emma, the main character in Once Upon a Time, is a bounty hunter, there are indications that she will become a sheriff’s deputy, bringing the show closer to a police procedural.  We’ll be checking out all of the episodes over time, but Law and the Multiverse reader Marize wrote in with some specific questions about episode 4, which is the subject of this post.  There are a ton of spoilers here, so check out the episode on Hulu if you haven’t seen it already (with apologies to our non-US readers).

For those unfamiliar with the show, the premise is that various fairy tale characters have been whisked away to Storybrooke, Maine, where they play out a modern-day version of themselves (e.g. the evil queen is the mayor, Rumpelstiltskin is a pawn-shop owner).  The episodes focus on Emma’s efforts to solve the fairy tale characters’ problems, bringing closure to their stories.

I. The Setup

Episode 4 is basically a blending of the stories of Cinderella and Rumpelstiltskin.  Instead of her fairy godmother transforming Cinderella into a princess, Rumpelstiltskin offers to do the job, for a price.  He doesn’t specify what he wants, but there is a long and apparently complicated written contract, which Cinderella signs.  Sure enough, Rumpelstiltskin shows up later, indicating that he wants her first born child.  The prince—with assistance from the seven dwarves and the Blue Fairy—concocts a scheme to get rid of Rumpelstiltskin: Cinderella pretends that she is having twins and offers Rumpelstiltskin a new contract.  Under the new contract, Rumpelstiltskin gets both kids but must ensure a good harvest for the kingdom.  He signs the contract, but the quill he uses has been enchanted to freeze him in place.  The plan comes to naught, however, when everyone is taken to the modern world.

In the modern world, Cinderella (“Ashley”) tries but fails to find the contract and destroy it.  Later, she gives birth and Rumpelstiltskin (“Mr. Gold”) demands the child.  Emma makes a new deal with him: Ashley keeps the child, and in exchange Emma will owe Mr. Gold a favor.  Notably, this agreement is not committed to writing.

Obviously this episode is rife with contract and family law issues.  Did it matter that Cinderella didn’t appear to read the contract?  Are contracts for adoption enforceable?  Is Mr. Gold’s deal with Emma a valid contract?

II. Was the First Contract Valid?

There are three major issues here.  First, Cinderella didn’t read the contract.  Second, Rumpelstiltskin didn’t name his price.  Third, is a contract for adoption enforceable at all?

A. “Don’t Sign Anything Without Reading it First”

The first issue is more complicated than it might seem at first.  Let’s consider two modern Alabama cases that discuss failure to read a contract and illiteracy (we would prefer to cite Maine cases for this post, but Maine cases are kind of thin on the ground):

“A party who having full capacity and opportunity to read a paper, and to whom there is no misrepresentation of its contents, can not set up his own want of attention-his failure to read it, as a fact to invalidate it.”  Potter v. First Real Estate Co., Inc., 844 So.2d 540, 548 (Ala. 2002) (emphasis added).

“A person who signs an instrument without reading it, when he can read, cannot, in the absence of fraud, deceit or misrepresentation, avoid the effect of his signature, because he is not informed of its contents; and the same rule applies to one who cannot read, if he neglects to have it read, or to inquire as to its contents.”  Green Tree Fin. Corp. v. Lewis, 813 So.2d 820, 825 (Ala. 2001) (emphasis in original).

So whether Cinderella can read or not, her failure to find out the contents of the written contract won’t help her unless Rumpelstiltskin misrepresented the terms of the contract (e.g. that he lied about the price when Cinderella asked what it was).  Since we don’t know what the written contract says we can’t be sure.  If the written contract did say that the price was her first born child, then Rumpelstiltskin made a fraudulent misrepresentation (i.e. he lied in order to get her to agree to the contract) and the misrepresentation was likely material (i.e. she wouldn’t have agreed if she knew the truth).

On the other hand, if the contract was an “open price” contract, then Rumpelstiltskin didn’t misrepresent its terms.  But that would create its own problems, as we shall see.

B. Open Price Contracts

Open price contracts (i.e. a contract for “a price to be named later”) can be valid.  See, for example, Uniform Commercial Code § 2-305 (legal pedant note: Human beings aren’t “goods” and so the contract wouldn’t fall under Article 2.  Where adoption contracts are legal the consideration is not ownership of the child but rather an effort to secure legal adoption, so it would be a contract for services.).  The problem is that the price must still be reasonable.  Since “your first born” is cliché shorthand for “an unreasonably high price,” that’s not going to work.

C. Contracts for Adoption

So are contracts for adoption ever valid?  Yes, at least in some jurisdictions, but not the kind in the episode.  The contract in the episode boils down to Cinderella selling her child in exchange for a personal benefit.  This kind of agreement is flatly invalid as against public policy and may even be criminal.  From In re Baby Girl D., 512 Pa. 449, 454 (1986):

Sales of children contravene the public policy of this Commonwealth, and cannot be sanctioned by our courts. Thus, payments to or for natural parents by adoptor parents are permissible when the payments are for services which directly benefit the child, such as medical expenses directly related to the birth. Such expenses are paid to ensure a safe birth and healthy infant, and not for the benefit of the mother, although the mother certainly receives an indirect benefit. Payments by adoptor parents which do not directly benefit the child are impermissible.

So zealously do the courts guard against baby selling that the court in that case invalidated a sliding scale for adoption fees (i.e. higher income adoptive parents paid a higher fee) out of concern that it would lead to a preference for wealthier adoptive parents, which the court considered tantamount to “dealing in humanity.”

Thus, the contract with Cinderella was invalid outright if it specified the first born child as the price, and if it was an open price contract then the first born would be an unreasonable price.  Either way, Rumpelstiltskin has no claim to the child.

III. What About the Contract with Emma

So that’s strike one for Rumpelstiltskin. What about his deal with Emma?  Is it on firmer ground?  Maybe.  The lawyers and law students among you are probably thinking about the pre-existing duty rule.  That is, it could be argued that the deal is not binding because Rumpelstiltskin didn’t actually promise to do anything of value because his promise to Emma (i.e. to call off Cinderella’s debt) was meaningless because his contract with Cinderella is almost certainly invalid.

The trick is that what Rumpelstiltskin is offering is not to do something he is already legally obligated to do or to refrain from doing something he is already legally obligated not to do.  Instead, he’s refraining from asserting a legal claim, which falls under a different rule:

(1) Forbearance to assert or the surrender of a claim or defense which proves to be invalid is not consideration unless

Restatement (Second) of Contracts § 74 (emphasis added).  Subsection (b) means that if Rumpelstiltskin believes that he had a valid claim to the child then his forbearance from asserting that claim is valid consideration for his deal with Emma.  On the other hand, if he knew his case was a loser (and there are some indications that he does know this), then it’s not valid consideration.  So this could go either way.

By the way, if you guessed that the deal was invalid because the statute of frauds requires that it be in writing…we’re afraid that was a classic bit of law school exam misdirection.  Nothing about the deal triggers the statute of frauds.

IV. Conclusion

From what we’ve seen of it, Once Upon a Time is a good show, and it’s shaping up to have a lot more legal issues, akin to Grimm.  We look forward to covering it in future posts.