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.


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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