Monday, December 28, 2015


i have discussed Keat's concept of negative capability on many occasions: the idea of being nothing to be everything.

je est un autre
ich ist ein anderer
i is another

lacan's idea each person is defined by a mirror that is held up to him. "that is me." however, someONE is holding that mirror at whatever angle and position they deem valid. the personal identity that is tied to outer appearance is only half of identity. then the mirror is the other half which completes the asymmetrical self into the "whole" version. holding this mirror for everett gives me pause, because he is so unique i am not sure what angle to hold it so he can define who he is. i know he is only three, but three year old brains are firing neurons like mad. yesterday was his birthday. his favorite thing to do is watch the airplanes land. so that is what we did. 

Tuesday, December 22, 2015

good love and protection

on repeat. the video mezmorizes the babes.

Friday, December 18, 2015

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. 

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.”  (  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

Friday, December 11, 2015


it was all about ezra. 
he stayed up each night til midnight since he was not in his own bed
he got to fly from vegas to salt lake instead of drive, because, come on...6 hours in the car with him??? i still had to bust out the harness at the airport
snow was not entertaining to him. at all. and he cried all day thanksgiving day. all. day.
my nephew with spina bifida just had a huge surgery, but ezra had to ruin our Connect Four game; and you can see Everett climbing behind him. chaos.

this text from Charly was the highlight of my thanksgiving. i have much to be thankful for. it is interesting how one can put so much effort into life, for example this trip, and it really is the simplest and smallest thing that i end up remembering. most things i really don't recall. huge blocks of life are very sketchy and sporadic in my brain.
from this trip i hope to remember:
my long walk with Susan where she told me how much she missed her daughter.
sweet 12 year old madeline coming to hug me first of anyone in the room.
mine and amy's talk over congealing turkey dinners
my brother sleeping on the floor of a hospital room to stay with Jaden after his surgery
the doggie door everett loved
james and deacon spending so much time together
everett standing on pat's new kitchen floor peeing

alex rocco, a beloved actor, said of one of his jobs:
That was my greatest prize ever in life, because I did about eight lines as an ant, and I think I made  over a million dollars. See, at that time, I had no idea what those guys were doing with voiceover. But because it was Disney/Pixar, it goes all over the world, then it comes to DVD. I made a fortune! Oh, my God! I mean, I haven’t touched that again, but A Bug’s Life, I’ll always remember that. Isn’t that amazing? You study all your life, you work really hard to do your best work onstage and onscreen, and then you make your best money playing an ant. 
(i loved that guy in The Famous Teddy Z)