A contractual analysis of Bartleby the Scrivner

I wrote this in my Contracts II class for a lit contest. I won  $250 check from my professor Bruce Markell. I liked that guy.                                                                                                                                                      
Polite Non-Performance in Herman Melville’s Bartleby the Scrivener

When I have an assignment to do, or a contest to compete in, I often catch myself quoting my favorite line from literature, “I would prefer not to."  The words are spoken by Bartleby in Herman Melville’s short story Bartleby the Scrivener:  A Story of Wallstreet.   In it, a productive law office is tossed into turbulence based on one employee’s simple, but powerful response that he “prefers not to” do any assignment he was hired to do.  Bartleby is a quiet, unassuming, steady worker when he accepts the job, yet becomes disagreeable to new tasks.  His boss, the narrator of the story, tries to force Bartleby to change (specific performance), but fails. 
The narrator explains: I abruptly called to Bartleby. In my haste and natural expectancy of instant compliance, I sat with my head bent over the original on my desk, and my right hand sideways, and somewhat nervously extended with the copy, so that immediately upon emerging from his retreat, Bartleby might snatch it and proceed to business without the least delay.
In this very attitude did I sit when I called to him, rapidly stating what it was I wanted him to do—namely, to examine a small paper with me.  Imagine my surprise, nay, my consternation, when without moving from his privacy,
Bartleby in a singularly mild, firm voice, replied, "I would prefer not to."
I sat awhile in perfect silence, rallying my stunned faculties. Immediately it occurred to me that my ears had deceived me, or Bartleby had entirely misunderstood my meaning. I repeated my request in the clearest tone I could assume. But in quite as clear a one came the previous reply, "I would prefer not to."
"Prefer not to, " echoed I, rising in high excitement, and crossing the room with a stride. "What do you mean? Are you moon-struck? I want you to help me compare this sheet here—take it," and I thrust it towards him.
"I would prefer not to," said he.  
Thus, begins the analysis of Bartleby the scrivener’s non-performance.  Assuming there is an agreement that is legally enforceable, we can move on from the simple Salingeresque formation world to the more opaque Melvillian world of post-formation (not to be confused with Machiavellian world, though based on concepts of Shirley McLain mitigation it could be easily construed as Machiavellian.)  Allow me some literary license to construct a semblance of the contract between Bartleby and his boss, the Narrator.  Here are the terms:
I, Bartleby, agree to perform typical duties as a scrivener for the above attorney.  It is understood that the above Employer may terminate this Agreement as a result of the Scrivener’s /employee’s failure to perform of any of the employment duties.  If this Agreement is terminated by the Employer for any reason, the Employer shall retain 3 months salary of the Employee as liquidated damages (not to exceed $5000) and not as a penalty and the parties shall thenceforth be released from all further obligations.  Such damages include, but are not limited to, loss of time and expense in training, and direct and indirect costs incurred as a result of the hiring and firing process.  This Agreement constitutes the entire Agreement between the parties pertaining to the subject matter contained herein, and superseded all prior agreements, representations and understandings of the parties.
Both parties signed the contract (so, even though it may or may not be a contract that can be performed within one year from its making, it is enforceable and statute of frauds does not apply because it is in writing.)  Bartleby has not performed pursuant to the terms, or has he?  Now, let us look at the terms and how the agreed terms of the contract are construed.  Then, we will look at if the nonperformance is excused and what the legal remedies are.
Express and Implied Terms:
What does the term “typical duties” and “any” mean as found in the contract?  Before we address the terms it is helpful to see what we can use to do so.  That is determined by the contract.  Is it integrated?  A document is said to be an "integration" of the parties’ agreement if it is intended as the final expression of the agreement. (The parol evidence rule applies only to documents which are "integrations," i.e., final expressions of agreement.)  (Nelson v. Elway)  A "partial" integration is a document that is intended to be final, but that is not intended to include all details of the parties’ agreement.  (Esbensen v. Userware) Did the merger clause in the Agreement manifest the intention of the parties that only those terms reduced to writing and signed would be enforceable terms of the agreement?   In this case, the merger clause plainly and unambiguously manifest the intent of the parties that the contract constitutes the entire agreement between the parties.  Bartleby may argue the modern trend that merger and integration clauses are afforded varying weight depending on the circumstances, and that there is no reasonable way that this writing is complete and that Bartleby intended their ultimate bargain to encompass other agreements, like what his specific duties are and how he is to be paid.  Like Lady Duff-Gordan, Bartleby may say the Narrator does not bind himself to anything, and does not promise that he will pay his scrivener.  Nevertheless, the courts would most likely say that even though the Narrator does not promise in so many words that he will pay Bartleby, such a promise is fairly to be implied.  A promise may be lacking, and yet the whole writing may be “instinct with an obligation,” and so basic that the Narrator may be excused for not spelling them out.  (Wood v. Lucy).  The test for finding an implied promise is assumed intent.  Therefore, even though there is no express provision in this contract for the Narrator to do anything, the agreement would not make sense without an obligation on the Narrator’s part.  IF there was an express term of salary, the implied terms could not contradict them, but since there were no express terms the court could rely on custom and current scrivener salary at comparable law firms to evaluate Bartleby’s salary and supply the terms that the parties would have agreed to had they thought about the matter.  The Narrator could argue that it was a fully integrated clause because there was a merger clause and grounds given for termination (“any failure to perform duties”)  (Esbensen), but salary is the essence of most employment contracts and needs to be in the contract in order for the contract to be complete.  This all would lead to the conclusion that this contract was partially integrated.

Being partially integrated, it is open to extrinsic evidence to determine what the words both sides agreed to mean.  Bartleby could argue that the term “any” is vague and left open to interpretation, in the clause “failure to perform any,” and means something other than what it says. Determining whether a provision is ambiguous comes down to the fact of the term having more than one meaning when viewed objectively by a reasonably intelligent person.  (Random House v. Rosetta Books)  A reasonably intelligent person may view “any” as having more than one meaning.  Like Karl Kelly in the LP case who is not so clear on what the term “any” means in the federal statue prohibiting wiretapping clause of “prohibiting any person from intercepting.”  Mr. Kelly, and the District Court that ruled for him, did not define him as “any” because he was a spouse.  So, “any” sometimes does not mean all.  So, Bartleby could have failed in some duties, like running to the post office, because “any” does not mean any.  It means all but some.  The Narrator could introduce extrinsic evidence to argue that based on the definition in Webster’s Dictionary “any” means “one or some indiscriminately of whatever kind: EVERY -- used to indicate one selected without restriction.”  (http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=any).  So, “any" means all of the noun classes; it does not mean “all except some.”  Because the use of the dictionary to determine what “any” means does not vary or add to the terms it is admissible to interpret the contract , it would be accepted that any is typically not in danger of misconception, so the Narrator may be granted that no ambiguity exists in the term “any.”  Hence, Bartleby’s first refusal to verify the accuracy of his copy constituted a breach of his duties.

An implied duty of any contract is the duty of good faith and fair dealing (GFFD). Restatement §205. In exclusive dealing arrangements the duty of GFFD is amplified to be one of “best efforts” to further the transaction. Lucy v. Lady Duff Gordon.  Therefore, since it is the Narrator’s subjective satisfaction of  Bartleby fulfilling scrivener duties, the subjective standard of honest satisfaction is applicable.  Especially true in employment contracts, it is likely that Bartleby will claim the Narrator breached his duty of GFFD by forcing Bartleby to work an unreasonable amount of time, doing “an extraordinary quantity of writing…gorging himself on documents.  There was no pause for digestion.  He ran a day and night line, copying by sunlight and by candlelight.”  This unreasonable amount of work forced on Bartleby ended up injuring his eyes, preventing his ultimate performance and leading to his breach of contract.  The Narrator’s push to work such long hours violated the implied covenant of GFFD by forcing Bartleby through his subjective contract definition of “duty” to frustrate his ability to perform and earn the benefits of the contract. 

This is a strong argument, but the Narrator has a few good responses. First, he can claim that the scope of the exclusive agreement surrounded only the regular 9-5 workday, a period that is not an unreasonable time to work.  Second, he can attempt to claim that Bartleby’s decision to work such long hours was his choice and not part of the contractual agreement that the Narrator forced.  The Narrator might be able to make a GFFD/best efforts argument of his own. He can claim that Bartleby purposefully frustrated his right to receive the benefits of a scrivener when after only a short duration of employment Bartleby began to respond to all the Narrator’s requests with a denial, “I would prefer not.”  And upon the Narrator’s repeated diplomacy in dealing with a problem employee, Bartleby wantonly violated the duty of GFFD when he replied to the Narrator’s request of “Say now, you will help me examine papers tomorrow or the next day  in short, say now, that is a day or two you will begin to be a little reasonable:  say so, Bartleby” with his cadaverous reply “At present I would prefer not to be a little reasonable.”  Based on the fact that Bartleby’s decline in eyesight occurred after his first refusal, it is most likely that the Narrator would prevail in the GFFD argument.

Bartleby’s strongest claims in avoiding contractual liability are the excuse doctrines of amendment/ modification, impossibility, and possibly mutual mistake.  These excuses will allow Bartleby’s lack of full performance to not result in breach.

The exception of modification is related to the fact that the performance agreed to at formation was altered informally when the Narrator neglected to complain or take action about Bartleby’s non-compliance.  An amendment is a permanent change to the contract obligation and can be effectuated by the parties actions (May Centers).  If the contract had been enforced in the way that it was written, and the amendment had not been applied, Bartleby would most likely be in breach.  However, the Narrator’s course of conduct of overlooking Bartleby’s non-performance evinced a modification of the contract that was consented to by Bartleby. 

The Narrator’s overlooking of Bartleby’s non-performance occurred many times.  After the first time Bartleby preferred not to (as quoted above) the Narrator only looked at him, thought about dismissing him, questioned:

“What had one best do?  But my business hurried me.  I concluded to forget the matter for the present, reserving it for my future leisure.  So calling Nippers from the other room, the paper was speedily examined.” (p. 112).

A couple days later Bartleby’s refusal caused the Narrator to ponder “a moment in sore perplexity.  But once more business hurried me.  I determined again to postpone the consideration of this dilemma to my future leisure.” (p. 114) Yet another time, after Bartleby denied to go to the post office, the Narrator “staggered to my desk and sat there is a deep study” doing nothing in response to Bartleby’s non-performance.  And after another “I prefer not to,” the Narrator replied, “’Very good, Bartleby,’ intimating the unalterable purpose of some terrible retribution very close at hand.  At the moment I half intended something of the kind.  But upon the whole, as it was drawing towards my dinner hour, I thought it best to put on my hat and walk home for the day.” (p. 117)  And again after Bartleby refused with ungrateful perverseness and after the Narrator had learned Bartleby was living in his office quarters, the Narrator

Sat ruminating what I should do. Mortified as I was at his behavior, and resolved as I had been to dismiss him when I entered my office, nevertheless I strangely felt something superstitious knocking at my heart, and forbidding me to carry out my purpose, and denouncing me for a villain if I dared to breathe one bitter word against his forlornest of mankind.” 

The Narrator even admits that the more Bartleby refused to work the more that became the status quo, “every added repulse of this sort which I received only tended to lessen the probability of my repeating the inadvertence” of asking Bartleby to perform. 

Based on the Narrator’s and Bartleby’s implied acceptance of Bartleby’s amended scrivener duties, like May Centers the conduct of the parties rose to an implied amendment of the scrivener duties in the contract.  If it was a one time breach of non-performance and the Narrator had nipped it in the bud, then it would be a different story.  But the fact that it was repeatedly accepted limits the Narrator from crying “Enough,” and firing Bartleby.  But, in May Centers they were still getting the benefit of the bargain, just on a different day of the month.  In theory Bartleby has a strong case of amendment, but because this amendment goes to the essence of the contract and deprives the Narrator of the sole purpose of the contract, the interpretation of the Narrator’s actions being an amendment would be an unfavorable interpretation that is inconsistent with common sense.  R2K§208 prevents forming a contract that no man in his right senses would make.  The court would limit the application of this unconscionable term to avoid the absurd result of the Narrator employing a motionless dead-wall revering scrivener.

Another amendment could have occurred if the contract was terminable at will. Bartleby could argue this contract is not terminable at-will as it does not specify that Bartleby could be terminated “at any time” and “for any reason.”  Here, it claims that Bartleby could be terminated for the failure to perform his duties. This could be an at-will contract, but like Red Lion who amended the contract to be not at-will, so did the Narrator amend the contract when he tried multiple times to fire and remove Bartleby, and then accept the fact that Bartleby would not leave.

The exception of impossibility is that performance of the contract has been rendered "impossible" by unanticipated events occurring after the contract was performed which significantly alter the nature of performance and that non-occurrence of the event was a basic assumption on which the contract was made, and that the impractibility was not Bartleby’s fault.  Bartleby may be able to point to a number of unanticipated contingencies that have occurred, arguing that they have relieved him of his obligation. Of particular relevance is his sudden loss of eyesight and his aggravated mental illness.  First, he may cite his hindered eye-sight as an unanticipated event that significantly altered the nature of his performance.  Non-occurrence of working eyesight is a basic assumption of the employment contract of a scrivener who uses his sight in almost every aspect of his work to read and copy.  This may be a loser because his loss of eyesight followed proximately from his own act of volition of working from early morning hours until late in the evening. Second, he may point to his mental disease as a supervening event. This is a better claim, but he would have to show that his mental illness was both would render his performance extremely impracticable and was not a pre-existing condition.

Mutual Mistake:
Another approach that he might take is mutual mistake. Recall that this excuse requires (1) a belief not in accord with the facts (2) that occurs at the time of contracting (3) that involves a basic assumption of the contract (4) and has a material effect on the transaction, and (5) is such that the party seeking excuse did not bear the “risk of mistake” as given in Restatement § 154. Here, although most of the “surprises” seem to be coming after the execution of the contract, Bartleby can fairly make an argument that some of them existed at the time of formation, but were simply not discovered until later. Particularly relevant here is his mental instability. This almost certainly satisfies all of the above criteria, and since mistake doctrine does not require a “substantial” burden be shown (only material effect), Bartleby’s best chance at using his disease as an excuse are right here. He may run into a problem with whether he bore the risk of mistake, since he was in the best position to know of and control his own health (by, for example, eating more than…and not sleeping in law offices); but a court would likely not buy this argument, given the rather loose relationship between health habits and the incidence of mental illness.  Bartleby would have little problem demonstrating that his health problems had a material effect on the transaction and the materiality of his mental stability goes to the essence of the contract.  A scrivener relies heavily on his mental capacity to understand and perform job tasks.  Without the essentials of such the object of the parties in making the contract is defeated when Bartleby cannot perform and grant the expected benefit upon the Narrator  The Narrator was the one hiring and that bore the risk of mistake (which here would also coincide with the economic risks). 

Most likely Bartleby’s refusal to perform the basic functions of verifying the accuracy of his copy, running to the post office and eventually copying documents constitutes a material breach of the contract as his lack of performance deprives the Narrator of the essential benefit which he reasonably expected: a scrivener.  In event that Bartleby can claim a valid excuse (e.g. mistake, impossibility, amendment), he will be able to void the contract. Avoidance does not mean, however, that he is not liable for something. To the contrary, Narrator would have potential restitution claims to recover any losses.

Remedy Limitations
In short, Bartleby materially breached the contract by failing to perform his duties.  His limitations of amendment, impossibility and mistake have valid points but will fall short.  The Narrator will most likely be able to collect his full expectation and consequential damages. In event that Bartleby is found liable for breaching his duties, a number of possible remedies might follow.

Expectation Damages:
In general, contract law prescribes a remedy of expectation damages, measured by the amount of money necessary to put the aggrieved party in the same position she expected to be in had the promise been performed. Damages are measure by the loss in the value to the Narrator based on Bartleby’s failure to perform, any other consequential loss caused by the breach, and any cost that Bartleby avoided by not having to perform R2K§347.  Unfortunately, for the Narrator (and fortunately for Bartleby) it will be difficult to establish with reasonable certainty most of his foregone revenues, which limits the Narrator’s prospective recovery. (ESPN, Inc. v. Office of the Commissioner of Baseball).

 Indeed, determining the revenues of a functioning scrivener is inherently speculative in nature, thereby making the certainty doctrine problem even greater. We could look to market value - what is the value of the services provided. The most the Narrator might be able to hope for is to recover those foregone revenues due to a non-operating scrivener; the price of paying his other scriveners to work overtime to cover for Bartleby every time he refused to work; the opportunity cost of having to take time from his schedule to perform the tasks Bartleby would not. As such, it’s unlikely that the Narrator would revert to a reliance measure of damages given that (i) their total reliance to date has been little due to no money put out for B. to be trained, as he came with experience and (ii) there was no office or office furniture for Bartleby, only a green partition set up in the corner.  “I procured a high green folding screen which might entirely isolate Bartleby from my sight, though not remove him from my voice.” (p. 111)

There would be nominal consequential damages, such as time spend hiring and firing, instructing and reprimanding Bartleby, loss of reputation when other attorneys would see Bartleby doing nothing and question the legitimacy of the Narrator’s practice, loss of office morale amongst the other scriveners who were angry with the situation, and possibly the cost of having to relocate his entire office to a different location when Bartleby refused to leave the premise. 

Bartleby might be able to resist this outcome by claiming mitigation/avoidablity.  In addition to the certainty doctrine constraints, the Narrator cannot recover damages that he could have avoided without undue risk, burden or humiliation. Rest. § 350; Parker v. 20th Century. Bartleby can argue here that the availability of other scriveners provides a substitute performer, and thus his presence disables him from claiming elements of lost profits.  The Narrator could have mitigated his damages by firing Bartleby much sooner than he did.  The Narrator will almost certainly argue that there is not a good substitute, since Bartleby’s market cache comes not only from the combination of his copywriting skills and dead letter office skills, but also from his absolute dedication to working so many hours.  In this sense, they might be making an argument similar to the “different or inferior” standard used in the Parker case as a way to get past the avoidability doctrine. While it is not clear whether a court would be willing to extend this doctrine to an employee, Bartleby appears to have a relatively good argument of his lack of uniqueness (his ego can probably take it).

Liquidated Damages Term:
The liquidated damages term that takes effect for termination for “any” reason not to exceed $5000 is deemed to be part of the contract.  Narrator may try to enforce it in lieu of expectation damages. Courts are generally willing to enforce such terms, but only if (1) damages are difficult to ascertain; and (2) the stipulated term bears a reasonable relation to anticipated or actual damages. Here is where the certainty doctrine may come back to hurt Bartleby.   Indeed, if Bartleby convinces the court to invoke the certainty doctrine, then he may be conceding both the fact that damages are difficult to ascertain and that the hypothetical amount is reasonable, thereby validating the liquidated provision. To avoid this (clearly unsettling) outcome, Bartleby may wish to ease up on his certainty defense, and perhaps cave into the precise expectation damages calculation. If so, then there is a better chance that the liquidated term will be thrown out as a penalty, since it overshoots. In any case, the fact that the liquidated damage term supposedly takes effect for “any” breach may render it overly broad. In addition, Bartleby should really push the avoidability arguments: for even though the Narrator need not avoid damages when an enforceable liquidated damages is in place, his ability to mitigate helps determine whether the stipulated term is unreasonable to begin with.
Specific Performance:
In lieu of monetary damages, the Narrator might seek relief in equity.  One would suppose we'd respect the rights of the parties to write what breach provisions they want into the contract -- defining a breach and defining damages (employee pays employer $5,000 on breach, parties go their own way, etc.).  From that perspective, one could contract, "You must perform your work duties under any circumstances.”   If, say, the employee “preferred not to” the courts could force employee to work?  Not so.  There is a widespread rule against specific performance for personal services -- if you say "I'm going to do personal work for you" and then breach the contract, the court won't force you to honor the contract, but would only make you pay money damages. Similarly, there's a widespread rule against penalty damages -- if you say "You can get out of the contract but only if you pay me $1,000,000," where the money is unrelated to the actual harm you'd suffer, the court won't honor that, on the theory that this is just a backhanded way of deterring breach and forcing the personal services.  With such terms, Bartleby is not allowed to sell himself into slavery if he wants to. However, it may be possible for the Narrator to use negative injunction to prevent Bartleby from scrivnering. AGH Associates, Inc. v. Fusco.  The principal doctrinal question is whether Bartleby’s skills and talents are unique and/or difficult to replace. Given the existence of Bartleby’s work ethic and incredibly unique capacity to copy legal documents the Narrator may be able to prevent him from working in other law offices. It seems more likely that the Narrator would be attracted by the money damages and actually would not mind if his neighboring counsel took on the Bartleby problem. 

In short, Bartleby materially breached the contract by failing to perform his duties.  His limitations of amendment, impossibility and mistake have valid points but will fall short.  The Narrator will most likely be able to collect his full expectation and consequential damages.  

Many have been perplexed at Bartleby’s actions.  Melville could, of course, explain his acts, but remaining true to his authorial intention does not permit him to. Boundary and enclosure are the meanings of this work; the unknown is permanently unavailable.  Melville, from an omniscient vantage point, does not breach his opacity.  And we are left uncomfortably perplexed, and Bartleby is left without a job.

For the full story go to: 

Cited in this analysis:
Melville, Herman.  Billy Budd and Other Stories.  Signet. New York, 1951

"O was an oyster
who lived in his shell
When people left him alone
he felt perfectly well."
-Edward Lear


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