Comments on: Adulterous Contracts

By: A.W.

A.W. — Tue, 31 Mar 2009 18:55:30 +0000

Not sure about Ottawa law, but if we go by american law, you don’t need classical consideration: you have detrimental reliance.

The public policy issue, however, is more interesting. Its obviously legal to cheat, but i would say that the law shouldn’t lift a finger to help people cheat. So it is unenforceable.

Of course if this site is smart, they will be paid upfront.

By: nate

nate — Tue, 31 Mar 2009 17:42:25 +0000

Oops. I should have typed “than the site owners.” It was a long night with a 21-month-old who has an earache…

By: A.J. Sutter

A.J. Sutter — Tue, 31 Mar 2009 16:21:49 +0000

I’m not sure I understand what makes it a good exam hypo: is it good because there is a good complex issue about blackletter contract law per se, or because you want to elicit public policy arguments? If the latter, is that really what people are testing on in contracts courses these days?

By: Nate

Nate — Tue, 31 Mar 2009 15:08:02 +0000

Ottawa is a common law jurisdiction. I think that it was chosen because the business is based in Toronto.

Miriam: I completely agree that the users of the site are more morally reprehensible than the users. The site is still pretty sleezy…

By: Miriam Cherry

Miriam Cherry — Tue, 31 Mar 2009 14:11:39 +0000

Ok, so the website is morally reprehensible. Is the site any worse than the individuals who use it?

The contract may be pretty one-sided, but that seems to be a secondary question…

Websites don’t commit adultery, people do (snarky paraphrase of another Volokh blogger).

By: Kaimi

Kaimi — Tue, 31 Mar 2009 08:28:55 +0000

Maggie Gallagher recently suggested that a revived tort of alienation of affection would be a good idea, because of websites like this. (Eugene Volokh disagreed.)

By: Lawrence Cunningham

Lawrence Cunningham — Tue, 31 Mar 2009 07:03:56 +0000

Why Ottawa? Is it a civil law jurisdiction, so not an adherent of the consideration doctrine as the primary basis of contract formation?

The public policy difficulty reminds me of the chestnut appearing in the Dawson et al Contracts casebook, Whitten v. Greeley-Shaw (Maine 1987) refusing to enforce formal agreement between two in extra-marital relationship by applying strict bargain theory of consideration, without getting into the exact public policy question).