Shylock and Article 9 of the U.C.C. (with some thoughts on bankruptcy)

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20 Responses

  1. Very interesting post about my most favorite Shakespearean play! My reading of the play is that the contract (or secured loan) was made partly in jest, as Shylock had no particular interest in getting the pound of flesh and recognized that it was worthless. Shylock was willing to lend the money gratis, but Antonio wasn’t ready to accept a gift from Shylock, so the solution was to create this rather silly “fiction” that the loan was indeed secured.

    In the interim, Antonio and Bassanio invite Shylock to dinner. During that time, Shylock’s daughter runs away with her boyfriend Lorenzo (and steals some of Shylock’s most precious possessions in the process). Shylock blames Antonio and Bassanio, thinking that they were in on the plot (which they were). And thus, in my reading, he suddenly decides to use the contract to exact revenge upon Antonio. Without this intervening event, I think it would be unlikely that Shylock would have really insisted on enforcing the contract and I believe that Antonio wouldn’t have expected Shylock to enforce it.

    I doubt that this makes much difference for the law. Although the language of the instrument is clear, I wonder whether Shylock and Antonio at the time of signing it really viewed it seriously or as just a kind of “fiction” (or even partly as a farce). Then circumstances changed, making the contract (and Antonio’s breach) mean much more to him.

    As for the anti-Semitism of the play, the play certainly depicts anti-Semitism but it isn’t an anti-Semitic play. It actually appears at times to be quite critical of anti-Semitism. Every character is depicted in a rather cynical dark light. There are no heroes in this play. Everybody is self-interested and acts quite badly. The Christian characters are depicted as just as nasty as Shylock is, though Shakespeare was clever enough not to be overt about his criticism for the Christian characters. With Shakespeare, nothing is as it seems — indeed, this is a major theme in his work (and especially in the Merchant of Venice).

  2. Nate Oman says:

    On the question of contracts made in jest, we have the authority of perrenial case-book favorite Lucy v. Zelmer, 196 Va. 493 (1954), in which the plaintiffs got specific performance of a contract entered into “as a joke.” Indeed, the point of the writing requirement (or “authenticated record” in the post-Internet age) is to channel the intentions of the parties and put them on notice that their acts will be given legal effect. I would have to once again side with Shylock on this one…

  3. Kaimi says:

    Interesting read on the contract/loan.

    There is at least some case law indicating that a “sham will” will not be probated.

    In Fleming v. Morrison, decedent wished to sleep with Fleming. In order to induce her to sleep with him, he drafted and signed a will leaving his estate to her. (Talk about an elaborate ploy to get a woman into bed!)

    However, he instructed his lawyer, who was one of the witnesses, that the will was nothing more than a ploy to induce Fleming to have sex with him. (The reported case, which is very brief, does not say whether or not decedent’s ploy was successful.)

    The court invalidated the will, based on invalid attestation (witnesses). One of the witnesses knew that it was intended as a sham, and was therefore not actually attesting to its validity.

    The question of sham will validity in general is an interesting one — had the lawyer not witnessed it, the court would have had to rule on another ground, and may well have upheld the will.

  4. tim zinnecker says:

    Very interesting post. I’ll offer a couple of thoughts.

    First, my initial reaction was that a pound of flesh is not a “good.” But you may be right. The definition includes “unborn young of animals,” so it must include the “born” young of animals. And as we’re all born (some more than once), and we’re mammals (a type of animal), we must all be goods (consumer goods? farm products?). (This all becomes a bit surreal to me, as I write this while feeding my 10-day-old daughter!) If the flesh is not a “good,” I suppose that it’s a general intangible” — the catch-all category, even though most of us wouldn’t consider our flesh as intangible. Oh, the language of the Code. But I digress.

    My second thought is to suggest why the security interest might never attach, at least if the parties rely on the “authenticated security agreement” option/requirement. The agreement must include a description of the collateral that reasonably identifies the matter. 9-203(b)(3)(A), 9-108. From the posting, I gather the description of collateral is “an equal pound Of your fair flesh, to be cut off and taken In what part of your body pleaseth me.” In my opinion, that description fails to “reasonably identify” the collateral because the debtor has more than one pound of “fair flesh.” Which pound? Whatever pound the creditor chooses? From where? The torso? The foot? Not sufficient, in my opinion. (The same problem may arise if the collateral refers to “five computers” and the debtor has more than five. Which five?) So because the description is inadequate, the parties have failed to satisfy the “agreement” prong of attachment, leaving themselves without an enforceable security interest. What sort of description might work? How about: “A pound of flesh to be extracted from the front part of the debtor’s upper left thigh, in an area so marked (see attached photo).” But again, might the “area so marked” include more than one pound of fair flesh? Hmmmm. All very interesting. (Perhaps I should add more, but I need to run and change a diaper.)

  5. Raffi says:

    Nate – isn’t there some sort of gloss forbidding turning organs into a secured interest. I mean, can you give someone a security interest against your lung? The pound of flesh doesn’t seem so different than that.

  6. Nate Oman says:

    Raffi: Perhaps not 9-408(c) states: “A rule of law, statute, or regulation taht prohibits . . . the assignment or transfer of, or creation of a security interest in . . . [a] general intangible is ineffective.”

    As tim points out above, the flesh may be a general intangible, which is the Code’s catch-all category for all personal property that doesn’t fall into the other categories. If I am mistaken in classifying the pound of flesh as a good, then it would be a general intangible and section 9-408 would apply, allowing the creation of the security interest. Of course, under subsection (d)(1) the security interest would not be enforceable against Antonio, but it would still be good in bankruptcy!

  7. Syd says:

    Given that Portia is masqerading as a judge, I think Shylock should be able to collect on his debt and Portia should be punished.

  8. vannessa says:

    I don’t like this play,cause I don’t like the end of Shylock.

  9. Stephen L. Sepinuck says:

    I think the analysis misses a fundamental preliminary point: a security interest can attach only to property. While a pound of animal flesh might well be property (specifically, goods), a person’s body is not normally treated as property. Hence, Antonio cannot and did not grant a security interest in a pound of his own flesh.

  10. jeremiah bobbins says:

    shylock is a vile character who deserves everything that he gets, therefore the contract doesnt even matter

  11. Oliver says:

    Shylock is a frail character who fail to see his downfall and ultimatly gets boid off

  12. ben thomson says:

    i like men

  13. Shylock is some bare big chav blud, dont get me wrong yeh but he seems like a nice guy but he daughter is bare fit so id stab him just to get on her. Shylock is some bare big stouty breh!

  14. ieuan padfield says:

    i agree with ben thomsons post, i also like men

  15. Shylock says:

    Oi blud, dont go getting rude wiv me I know where you live and will come bang you one time!! Shut up blud!

  16. Oliver Harkin says:

    Shylock makes my groin all tingly.
    I want him inside of me…. :)
    Beattie Is a Boi

  17. OLIVER HARKIN says:

    I HATE SHAKESPEARE ITS SO CONFUSING WHY AM I SO STUUUUUPID!!????

  18. oliver harkin says:

    i hate shakespeare its so hard and confusing, why am i so stupid!!??

  19. Beattie is a batty man says:

    Shylock Floats My Boat Big Time.
    He can receive my bond any time he likes.. ;)

  20. Mr Furness says:

    Children – do get on with your work.