Contract Analysis of Holden Caulfied
And because I was a dweeb...I wrote two lit analysis for Contracts II. This was the second, and lesser of the two. Read and write; read and write.
Vanessa
Huff
Holden’s Rebellious Contract
Formation:
Agent and Capacity
in J.D. Salinger’s Catcher In The Rye
After deciding against a
late night visit to the hotel bar, Holden Caulfield decided to take the
elevator up to his room and retire for the night. As Holden enters the elevator, the elevator
guy asked him, “Innarested in having a good time fella? Or is it too late for
you?” Holden did not know what the guy
was talking about and replied, “How do ya mean?” He clarified for Holden, “Innarested in a
little tail t’night?” “Me?” Holden
ignorantly asked. “How old are ya
chief?” the elevator guy asked. To which
Holden replied, “Twenty-two.” The guy
then reiterated and added, “Well, how bout it? Y’innerested? Five bucks a throw. Fifteen bucks the whole night.” Then he immediately amended to say, “Till
noon. Five bucks a throw, fifteen bucks till noon.” Holden agreed, “Okay.” “Okay, what?
A throw, or til noon? I gotta
know.” “Just a throw,” Holden replied. “Okay, what room ya in?” Holden looked at the red key tag with his
number on it, “Twelve twenty-two.”
“Okay. I’ll send a girl up in
about fifteen minutes.” He opened the
doors and Holden got out of the elevator, saying, “Hey, is she good looking…I
don’t want any old bag.” To which he
replied, “No old bag. Don’t worry about
it, chief.” Holden asked the last
question, “Who do I pay?” “Her,” the guy
said and the doors shut.
Later in the room, Holden
was getting ready to pay Sunny: “I’ll
get my wallet. I mean it,” Holden told
her. He took out a 5$ bill and handed it
to her. She responded, “This is a
five. It costs ten.” Holden clarified that “Maurice said
five. He said fifteen till noon and only
five for a throw.” “Ten for a
throw.” Holden persisted, “He said five. I’m sorry – I really am – but that’s all I’m
gonna shell out.” She picked up her coat
to leave, “So long, crumb-bum.”
This interchange between
Holden and the elevator agent, Maurice, raises several contract questions. Did Holden make a contract for “a toss” when
in the elevator with the agent? Was the
agent acting within the scope of his authority?
Was there offer and acceptance? Is consideration satisfied? Assuming formation occurred, what defenses
might Holden have and what recourse would he have in the event of breach? Did Holden have capacity to enter into a
contract? Did either of the parties
breach by not participating in the contractual obligation of a “toss”? Does Sunny have the right to change the price
of services after her agent had contracted?
What happens in a dispute over an unwritten term of a contract?
Is
this case governed by the principles in the R2K? Since it does not involve moveable goods it
would not be governed by the UCC. Since
this a contract for services, the common law provides the rules of decision,
and the Restatement provides good approximations of the applicable rules.
R2K
§24 defines an offer as a manifestation of willingness to be bound to a
bargain, so made as to justify another in believing their assent is requested,
and will conclude the deal. Intent
must be manifested through such words or acts that a reasonable person would
believe an offer is being made. Lucy v. Zehmer. Did the elevator guy’s question of
“Innarested in a little tail t’nigt” manifest reasonable intent to be
bound? No, due to the vagueness of the
question, it is a request to negotiate, but the intent is manifested in the
more specific question of “Well, how
bout it? Y’innerested? Five bucks a
throw. Fifteen bucks the whole night,”
to which he specified the terms to be, “Till noon. Five bucks a throw, fifteen
bucks till noon.” With respect to the
second element – a reasonable understanding that assent is invited – the fact
that they guy directed the question to Holden and then was anticipating a
reply, shows he was inviting Holden’s assent.
The final element is met – that the offer is such that it is reasonable
to expect that assent from Holden would conclude the deal. The agent only needs Holden to say “Okay,”
for him to understand that the deal was sealed.
While
the elements of offer are met, it must be determined if the offer meets the
objectivity test; that is, whether a reasonable person would have believed the
agent was serious in making the statement.
A reasonable person may question the legitimacy of an elevator guy
doubling as an agent. The guy asks
Holden his age, so Holden must not automatically pass as one of age to hire
such services, so a reasonable person would not expect a guy working in an
elevator at a decent New York hotel to offer services of this kind to a person
who looks like a kid. But pimps are not
respectors of persons, they will negotiate with anyone who has money, and not
flippantly waste time joking to sell services when he could actually be selling
and making deals. Time is money to the
pimp, and unlike the clown, his is not a jovial profession of jest. Ultimately, the proper interpretation of this
exchange presents a factual issue for the trier of fact: even if the words
taken in isolation would satisfy the definition of offer, the test is whether a
reasonable person in Holden’s position would have thought that the agent’s
words were uttered in jest. If so, there was no offer, and without an offer
under these facts, there could be no acceptance, and no contract.
In
addition, Holden may argue that the offer lacked certainty. R2K § 33 requires that an offer be
sufficiently certain in order to be valid. Though deliver time and place was
given, there was vagueness in the terms “toss” and “throw.” For example, Holden could assert the offer
was uncertain as it did not provide a basis for determining breach or an
ensuing remedy (R2K §33(b). And, given
the fragmented nature of the conversation between Holden and the agent, the
terms of the deal were not clearly given with the question, “Well, how bout it?
Y’innerested? Five bucks a throw. Fifteen bucks the whole night.” Holden may say the contract provisions of
“throw” and “toss” are ambiguous.
Especially since the agent knew Holden was young and quite likely to not
have knowledge of the use of such terms in the trade, Holden could claim the
terms of the contract were open. The open terms tend to show that an offer was
not intended, and that Holden therefore had no ability to accept. However, as outlined in Random House, Inc.
v. Rosetta Books LLC, contract language is viewed as ambiguous if it is
capable of more than one meaning when viewed objectively by a reasonably
intelligent person and who is aware of customs, practices, usages and terminology
as typically understood in the particular trade. Just because Holden was not aware of what the
terms meant does not mean that the terms were ambiguous. The terms have definite meaning of which he
may have been unaware of outside the denotation, but in the industry, they are
not ambiguous.
Another
issue with offer is the agent’s role or authority in offering services
and setting terms. Unlike the example
given by Professor Markell of him offering to sell UNLV’s computer monitor for
5$ regardless of the fact that it is not his to sell (under §2-312 a provision
of the contract is that the person owns what it is they are selling), an agent
has the right to act in the name of his principal (Sunny). Was Maurice Sunny’s agent? Holden did not have to know, for if Maurice
was misrepresenting the R2K § states that if
Holden’s manifestation of assent is induced by a fraudulent misrepresentation
by Maurice, upon which Holden is justified in relying, the contract is
voidable. So, if the elevator guy was
not given actual
authority (given in fact by the principal to the agent by the principal’s
explicit statements and implicit representation), or apparent authority (arises
from the principal’s manifestations to third parties)), or inherent authority
(occurs when a principal is liable to third parties, but actual or apparent
authority is not applicable, the law of undisclosed principal) then he was
fraudulently misrepresenting himself. Such a misrepresentation induced Holden to make the
contract, which would make the contract voidable.
However, Holden was
justified in relying on the misrepresentation of this random elevator guy being
an agent for a prostitute. Because pimps
remain somewhat incognito, and because he was out late, the time when such
activities typically occur, in a cosmopolitan city such as New York, where such
activities are germane, in a hotel where it is conducive to conduct such
business, Holden could have reasonably thought that this guy was in fact an
agent.
If
an offer can be construed, acceptance, however, is also required for
contractual liability. Acceptance under
§50(1) of the R2K is manifestation of assent to the terms of the offer made by
the offeree in a manner invited or required by the offer. When Holden answered “Okay,” to the agent the
elements of acceptance were met. Since
this is bilateral contract with an exchange of promises, the agent had no
expectation of performance by Holden only his promise. This acceptance is
effective once he gave notice to the agent’s face. Hendricks v. Behee. Thus, Holden fulfilled the requirements of
acceptance.
While
the elements of acceptance are met, it must be determined if the acceptance
meets the objectivity test; would a reasonable person believe Holden was serious
in accepting? Holden agreed even though he didn’t believe in prostitution,
"Okay, I said. It was against my principles and all, but I was feeling so
depressed I didn’t even think. That’s the whole trouble. When you’re feeling
very depressed, you can’t even think.”
Holden revealed that prostitution is against his personal morals, but he
was so depressed, that he wanted immediate relief of his awful feelings, so a
reasonable person could determine that young Holden was reacting out of
loneliness and desperation in entertaining the idea, but was not serious in
accepting the actual offer of services.
In Davis
v. Jacoby,
the court held that the intent of the parties, as objectively determined from
their actions and the context in which they occur, will typically control over
the form of words used. So even
though Holden said “okay” his hesitancy and tentativeness could be construed as
not really agreeing. Despite his
depressed mental state, based on Holden clarifying the terms of who to pay and
when she would come up, a reasonable person could conclude that the assent
Holden gave was serious and in the manner invited by the agent.
Additional Terms
Holden
said “okay” to the agent’s offer, and then tried to modify the contract by
attaching additional terms, specifically that the girl not be an “old
bag.” R2K§ follows that modification should be enforced without new
consideration if the parties voluntarily agree and if: (i) the promise
modifying the original contract was made before the contract was fully performed
on either side; (ii) the underlying circumstances which prompted the
modification were unanticipated by the parties; and (iii) the modification is
fair and equitable. The modification was
agreed to, not unanticipated, but was fair and equitable for Holden to ensure
that his $5 investment (at that time being
$33) was securing an aesthetically pleasing experience, that typically
being a basic assumption of that type of deal.
Holden could add an additional term after accepting because Sunny had
not come up and fulfilled the contract.
Assuming
a valid offer was given by the agent and there was an acceptance of that offer,
was there valid consideration for the agreement? §71 states that, in order to constitute
consideration, a performance or return promise must be bargained for. The R2K
departs from the use of the detriment test and only requires something to be
bargained for and given in exchange. A
contract is enforceable only if it is supported by consideration. Kirksey v. Kirksey. In this case the bargain is a promise for a
promise; a promise to send Sunny up to Holden’s room and Holden’s promise to
pay $5 for such service.
Assuming that there was a valid contract formed between
the agent and Holden, Holden may have a slew of defenses with which to refute
the agents claims.
Capacity. R2K§ 12
Capacity to Contract. No one can be
bound by a contract who has not legal capacity to incur at least voidable
contractual duties. Holden incurred a
voidable contract by entering into a transaction as a minor, who is mentally
ill (as implied in the book), and intoxicated.
Holden is only sixteen and
not of age to enter into a binding contract (especially since Sunny is
not a necessity). The agent may argue
that Holden is independent since he is not under the guardianship of his
parents since he does not live at home, but his parents still are his guardians
since they take care of Holden’s necessities, thus he would not be independent
and able to contract. The agent suspected Holden was a minor by asking him, “is
it too late for ya… how old are ya chief?”
Even though the agent suspected Holden was a minor, he bore the risk of
finding out before contracting with him.
One whose mental capacity
is so deficient that he is incapable of understanding the nature of a contract
may disaffirm when lucid. Holden’s
mental instability is manifested in
feelings of depression and loneliness that persevere throughout the book. The beginning of the book
has him in California for mental therapy, it is from here he recounts the
memory of how he got there and the events in New York that led to his
breakdown He is upset about the death of his brother who he was
very close to, Allie, because Holden admired him for not “selling out” and not
being a “phony”. He is upset that his
other brother is “out in Hollywood, D. B., being a prostitute" because he has traded in his talent for story telling to write
for the movies in Hollywood which Holden considers an inferior art form. He is
sick over Jane, Holden’s image of perfection, who is going out with his jerk
roommate Stradlater. He proposes to
Sally, a girl who annoys him, asking her to leave her family and run away with
him to Vermont where they can live in the woods. Right before entering the
elevator Holden lamented, “I wasn’t sleepy or anything, but I was feeling sort
of lousy. Depressed and all. I almost wished I was dead.” The trier in fact would have to listen to
expert testimony regarding depression and Holden’s depression specifically to
determine if Holden was unable to understand the nature and consequences of his
deal with the agent. If so, then the
contract is voidable.
The
agent may argue (all other defenses aside) that Holden was not subject to major
mental illness, but that his apparent dysthamia is typical to many a
angst-ridden young adult. The agent
may also argue that since the agent
was without knowledge of the mental illness, the power of avoidance terminated
once Sunny came to Holden’s room because her coming to the room was performance
in part, and avoidance would be unjust.
Logically it would seem that not much effort is required of the agent to
have Sunny go to Holden’s room, such that termination of the contract would not
cause unjust consequences for the agent.
The former argument of Holden not really being mentally
incapacitated, but rather angst ridden, is likely to be valid.
If Holden was so intoxicated
as not to understand the nature of his promise he may be held to have made a
voidable promise if the agent had reason to know of the intoxication. “I’d only had three drinks at Ernie’s and I
didn’t even finish the last one. One
thing I have, it’s a terrific capacity. I can drink all night and not even show
it, if I am in the mood.” Holden was walking
and talking fine, the agent did not see how much alcohol Holden consumed at the
bar, so it is reasonable for the agent to not have known that Holden was drunk.
Illegality- If the subject matter of
the bargain is illegal, then the contract is void. R.R. v. M.H. &
Another. Holden cannot lawfully contract to pay for the
performance of sexual services, for such a contract is, in essence, an
agreement for prostitution and unlawful for that reason. A promise in
consideration of present or future prostitution in New York falls under this illegality.
For
analysis sake this will assume there were no defenses available to Holden, and
he had entered into a valid contract.
Did
either party breach by not fulfilling the terms of the contract if they
mutually assented not to? If there is a
material breach, Holden can suspend performance of paying and sue for
damages. If there is a minor breach,
Holden can sue for that which would put him in the position he would have been
if the contract had been performed.
Since Holden did not refuse to pay Sunny, but only asked her if it would
be ok if they just talked (again, Holden is changing the terms of the contract,
but since Sunny agrees, there is no issue), she will have acquired the benefit
of $5 regardless of the terms changing.
Holden was the one who requested the change in the terms, so the fact
that he is out a toss is his doing, and he gained a conversation. Since Holden did not specify the terms of the
conversation, the fact that it was superficial and short is not relevant. Holden got his (conversation) and Sunny got
hers ($5). So, no breach.
Sunny
tried to charge Holden $10 when Maurice had contracted her for $5. She was bound to the price Maurice’s gave out
of actual authority (given in fact by Sunny to the agent). The time she could have negotiated over price
was when Holden changed the terms of the contract from a toss to a
conversation. At this point she could
have informed him that a conversation was $10.
But since Maurice had authority to contract her for $5, then Sunny was
bound to that price. Even though she had
a subjective idea that a toss was $10, Holden can rely on the objective
manifestation that Maurice gave. She
needs to take this issue up with Maurice.
Holden
has a tort claim of robbery and assault and battery against Maurice when later that
night, the prostitute and the elevator pimp force their way into his room to
extract the difference in the rate. The contract
issue in this scene is what happens when there is only an oral agreement and a
dispute over a term after the contract has already been performed? The pimpy elevator guy is now saying that he
told Holden a toss was $10, even though Holden heard him say $5. If the contract had not been performed then
the it could be terminated if the disputed term was not settled. Since the contract had been performed, what
did Holden contract to pay and how can that term be enforced? If the industry standard for a toss was $10,
then trade usage would push Holden to pay $10.
But what if Holden was getting a great deal contracting for $5, is it
just for him to have to pay $10?
Especially considering he was quickly running out of money? This is a question
of proof. A court will resolve the
question by submitting the disputed facts to the jury, and having them figure
out who is telling the truth.
Conclusion
There was valid offer by an agent, acceptance in the
manner requested, and consideration in this contract. However, Holden holds the trump defense of
illegality and incapacity as to make the contract voidable.
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