The Ballad of Subsequent Impossibility:

For those who remember Paradine v. Jane (1648) from your contracts classes; if I'm not mistaken, it's still in some casebooks, or has been until recently:

1. What the parties said.

Jane refuses his rent to pay.
'I have no kine, nor corn, nor hay;
Rupert the alien came my way,
     Cared not a button
For rights of property. No, the thief
Carried my harvest every sheaf,
Turned my oxen into his beef,
     Sheep into muttion.

'Fields are ravaged and homestead burned,
Out of my lands by the alien turned,
Nought can I pay where nought is earned,
     So I go free.'
'No,' said Paradine, 'I'm afraid
I must ask you for rent unpaid:
No conditions in lease were made.
     Hear Court's decree.'

2. What the Court said.

'This is no duty by law created,
Else had vis major the charge abated.
This is a contract. The terms are stated.
     Nought do they say
Of risks excepted which loss prevent,
Nor yet of conditions subsequent.
Such should be mentioned if such were meant;
     So Jane must pay.'

3. The rule and its exceptions.

Thus and well do the Courts decide.
Make conditions lest ill betide,
Else by your promise you must abide.
     Yet I'll remind you,
Where the thing to be dealt with is destroyed,
Or Parliament makes your promise void,
Or illness shatters the skill employed,
     Contract don't bind you.

With these exceptions, you can't be heard
To say that, from things which have since occurred,
It isn't convenient to keep your word.
     Unto the letter.
And, with this knowledge, I may opine
That the case of Jane and of Paradine
Will never be either yours or mine;
     No! we know better.

From Sir William Reynell Alson, Ballads en Termes de la Ley (1914).

Does this mean that my sister, wracked by cancer these many months, can skip paying her mortgage? Certainly, her illness has shattered her ability to go to work.
8.19.2009 12:42am
jellis58 (mail):
hmm that case was not in my contracts book (or at least wasnt assigned, i could go look at the book to see if its in there) when I was a 1L three years ago at UCLAW. It sounds like maybe the case as described in the poem would come out the other way today on frusteration of purpose grounds.
8.19.2009 4:01am
jellis58 (mail):
okee becuase Im a dork i pulled out the book (which I didnt sell back for no good reason) and it is in indeed not in there. (Contract Law and Its Application Arthur Rosett and Daniel J. Bussel sixth edition) I guess the some cases get kicked out of the casebook canon from time to time.
8.19.2009 4:07am
Milhouse (www):
Antiquus, no, it doesn't mean that. But it does mean that she can skip out of any employment contract she may have signed. A mortgage is simply a loan, so there's no way to get out of paying, but if she were renting and the house burned down and no longer existed then she could stop paying rent. The thing to be dealt with is destroyed. In Jane's case, he had to pay because the land continued to exist, it was merely impossible for him to use it; similarly, if your rented car is stolen you must keep paying for it, but if it's wrecked then you don't. In the case of illness, the skill for which the employer has contracted no longer exists, so the contract is void.
8.19.2009 4:20am
I actually think I vaguely recall learning this case as a squib in Property, not K's, as an illustration of how landlord-tenant law worked before the implied warranty of habitability, etc. (or the idea that a covenant to pay rent was separately enforceable from any of the landlord's agreements to actually deliver the property to the tenant).

I'm skeptical it would be taught in many contracts courses, as contracts involving land are typically relegated to property (which, in large part, is just a specialized branch of contracts).

But, as a matter of modern K law, I think the agreement would likely be void as impractical under the famous balcony-rented-to-watch-the-coronation case, regardless of whether sufficient conditions precedent were in the K itself.
8.19.2009 5:10am
Well, not actually "void," but the aggrieved party could get out of it. You know what I mean.
8.19.2009 5:11am
Was this where Justice Eakin (from the Pennsylvania Supreme Court) got his inspiration for his verse opinions?
8.19.2009 7:10am
Prof. S. (mail):
Sure easier to understand that The Case of the Thorns, which was my first torts case. Nothing like trying to translate Latin to figure out what the Court is saying.
8.19.2009 9:21am
Today's Tom Sawyer:
My casebook, Contract Law and Theory by Scott and Kraus, sure enough has if only every case in the book were written in verse.
8.19.2009 9:28am
Smooth, Like a Rhapsody (mail):

did you, by any chance, go to law school at He-Gets-High-On U.?
8.19.2009 9:39am
Milhouse (www):
Now to find a tune that scans properly. This isn't standard ballad metre, so Greensleeves/Yellow Rose of Texas won't work. So far the best I can think of is a tune approximating that of Jedi Rebel Queen by Sheila Willis.
8.19.2009 2:18pm
Dilan Esper (mail) (www):
People should do this for other cases.

Mrs. Palsgraf had no sense of dread.
Up to the platform she'd been led.
Until she met her doom
When a box went kaboom
And some scales fell right on her head.
8.19.2009 2:21pm
Dilan Esper (mail) (www):
In Topeka they had segregation
To keep blacks in their "rightful station"
Till one day Brown sued
And the South came unglued
As we moved closer towards being one Nation.
8.19.2009 2:27pm
The Original TS (mail):
And here‛s to you , Mr. Madison
Courts have power more than you will know, Wo Wo Wo
God bless you please, Mr. Madison
Deliver my commission today!
Hey, Hey, Hey

Have an en-banc hearing on a Thursday afternoon
Listen to the litigants debate
Congress gets to make the law,
But we get to choose
Sorry, Mr. Marbury, you lose.

What can I say? It's mid-August!
8.19.2009 4:18pm
jellis58 (mail):
A limerick:

Mr Sullivan was a cop most callous
the NYT was liable when they decided to tell us
But the supreme court reversed
in an opinion Sulivan cursed
because the statements lacked actual malice!
8.19.2009 6:18pm

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