Saturday, September 17, 2005

Dunston v. Priscilla

Although I cannot universally condone making law school fun, neither can I deny that fatal boredom impedes learning. I've thus incorporated into my teaching such fripperies as smiling, witty repartee, and belting out country-and-western-style songs about contract law defenses while wearing a bolo tie and boots. Yesterday saw me suffering yet another such indignity in the name of effective pedagogy: Performing a poem that I wrote to illustrate some principles of contract formation.

This time, at least, I got a couple of my first-year contracts students to share in the exercise. Ms. Waggoner read the part of Priscilla, while Mr. Phillips read that of Dunston. Together, we three recited (a very slight variation on) the following:

Priscilla v. Dunston
~ or ~
A Harmonic Mnemonic on Contract Formation

Wrote Dunston to Priscilla, "Will you come with me to the show?"
Wrote back the apt-named Prissy, "Please no burlesque! But yes, I'll go."

But the former's eye--and worse--did roam,
Ere the latter's letter had struck home.

Dunston spoke pre-post, and called the whole thing off!
Priscilla orated (ex post polite cough):


"Many virtues fructify the legal system of our nation.
Among these, jurisprudes esteem the contractual relation.
Three elements combine in one such binding obligation:
Offer, acceptance, and consideration."

"An Offer!?" Dunston snorted, mocking pro se, as it were,
"I asked only for parley--not the deal you would aver."

"Au contraire!" Pris boldly answered, "If you'll excuse my legal jargon,
You invited assent, which I did present. Thus was sealed our bargain."

Priscilla paused for effect.
Dunston did not interject.

"Allow me to remind you of my earlier oration,
Which laid out just the rule for this unpleasant situation.
Three elements combine in a contractual relation:
Offer, acceptance, and consideration."

Priscilla revealed a small, wicked smile,
As Dunston hemmed and hawed and stalled a while.

"You rejected my offer when you barred burlesque,
And, what's more, I revoked!" he decisively guessed.

"You left that term open," came her ready reply.
And acceptance took wing when I let my words fly.

"Though you look at books of law as no more than decoration,
They say an awful lot about the risks of litigation.
See, e.g., the elements of contractual formation:
Offer, acceptance, and consideration."

Dunston, defending his last redoubt,
Cast Priscilla's girlish charms in doubt:

"Consideration calls for quid pro quo.
But you rate, as a date: zip. . . zilch. . . zero!"

Pris sighed, "Though you lack consideration qua tact,
My promise to see you gave exchange for our pact.

"Moreover, you should have reasonably foreseen,
That I'd act on your promise, which sounded so keen,

"I turned down other dates! Spent time! Wasted money!
(The shopping was fun, but the bill wasn't funny.)

"Consideration or not, contract or no,
For costs that I bore in reliance, you owe.

"I justly claim the elements of contractual formation
(offer, acceptance and consideration),
But if your defense makes my contract plea topple,
I'll lay my claim to promissory estoppel."

Here, we take leave of our unhappy pair,
Arguments flying, colliding mid-air.

Let us study their claims, applying the law,
To thus call a winner (or call it a draw).

Above all, let us recollect,
That lesson worthy of respect:

Three elements combine in a contractual relation:
Offer, acceptance, and consideration.
But if your contract claim meets with unwavering defiance,
Plea, "Promissory estoppel!" to recoup your reliance.

Lest my students have too much fun, I immediately followed the poem's performance with a quiz. I had each student annotate a copy of the poem with comments about the merits of the various legal claims made. The exercise proved useful to me as well as to them; our subsequent discussion of their answers made clear that I'd made it too evident that Priscilla had rejected Dunston's offer. In the version they had heard performed, Priscilla responded to Dunston's invitation thus: "If not burlesque, then I will go." I've since changed her line to, "Please no burlesque! But yes, I'll go." That makes it less clear whether she is rejecting Dunston's offer and substituting a counter-offer or accepting his offer while merely asking that she not suffer burlesque.

I also thank Eugene Volokh for helping with the poem. He gave me such good comments on my "Interstate Commerce Blues," that I thought I'd get his opinion on a draft version of "Priscilla v. Dunston." Sure enough, he again caught me botching the rhythm.

Perhaps you can improve the poem, too. I welcome your suggestions. As the subtitle indicates, I ultimately plan the work as a song. Although I've made some progress on that front, my broken arm currently impedes further composing. I let no blame for my doggerel fall on my students, Eugene, or my stylistic exemplars, Gilbert and Sullivan. You would win a similar exemption.


Alonso said...

Tom, you've created a charming and amusing pedagogical poem. Bravo! Getting your students to think on their own through verse is a brilliant idea. You seem to revel in a bygone era of proper courting and chivalry. Also, you make me feel like square dancing or dancing a do-si-do.

P.S. You've misspelled "doggerel".

Glen Whitman said...

That's really excellent, Tom. I'm curious as to the legal bottom line (if there is one). My take, as a non-lawyer who happens to have studied a lot of law, is that the offer and consideration requirements were both met, but acceptance -- even with your change of wording -- was not. By specifying "not burlesque," she made her acceptance conditional on at least a clarification (and possibly a modification) of the original offer. That means negotiations were still ongoing, and no final deal struck. Am I right?

Tom W. Bell said...

Thanks for your kind words, Alonso. I've fixed the misspelling, per your suggestion.

I think acceptance is a close call, Glen. True, common law imposes a "mirror image" requirement on effective acceptances. But it also recognizes that merely precatory (love that word!) changes--those that merely suggest or plead for a different term rather than require it--don't violate that rule. Pris says, "Please no burlesque"--classically precatory phrasing. Plus, she adds, "but yes, I'll go," suggesting that she intends to manifest assest to Dunston's (putative) offer. Add it all up, and I think you have a triable claim that she accepted but also *requested* an additional term.

Z said...

In my layman's view, it seems her acceptance is clear. She must accept Burlesque if that is D's choice. I equate her "please no bulesque" with me saying to my mortgage company: "please lower my rate to zero."

Of course, by dishonoring her request, D is establishing an adverserial position which will ultimately forfeit claim to any of the customary, but optional, secondary benefits associated with such a contract.

Tom W. Bell said...

Well put, Z! On your analysis, we might read "Please no burlesque!" as a condition Dunston must satisfy if he wants to open negotiations on, um, a transaction ancillary to the one accepted.