Fault in Contract Law: The Case of the Easter Peeps
posted by Dave Hoffman
We’ve been talking about the role of policy analysis and risk in contract law. Roughly speaking, what’s at issue is the role of motive, fault and morality in deciding the legal consequences of breach. Now, from left field, comes a bit of a different example.
A sympathetic jury sided with the landlord today in the case of a Colorado woman who stopped paying rent after the Peeps-decorated Easter display she had hung above her door was removed … [the Lessee] claimed she was told to move out of her Boulder-area apartment last year after she refused to take down the decorations, which included purple, yellow and green Peeps; stickers; and plastic grass, nailed above her front door. Aimco claimed Burdick was evicted when she stopped paying rent to protest the May 14, 2009, removal of the decorations. It said it was justified in ripping down the candy 17 days after Easter because the display was tantamount to garbage and wasn’t allowed under the terms of her lease.
(Before the verdict, Stephen Colbert did a great sketch on this case called “Easter Under Attack.”) But why do I think that contract juries consider issues of comparative harm and fault (though they technically aren’t supposed to)? Because it’s inescapable:
The jury awarded Aimco $1,132.66, less than the $2,300 it had been seeking in unpaid rent. Burdick, meanwhile, had asked the jury to award her $700 in moving costs and $299 for her unreturned security deposit.
In explaining the decision to award a lesser amount to Aimco, a juror told the Boulder Daily Camera, “You could see faults on both sides.”
June 25, 2010 at 12:29 pm
Posted in: Contract Law & Beyond
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Responses (5)
A.J. Sutter - June 26, 2010 at 10:45 pm
Since jurors are finders of fact, do their attitudes really count as contract law? Wouldn’t it be more appropriate to title this post “fault in contract lawsuits“?
Dave Hoffman - June 27, 2010 at 12:17 pm
AJ — I don’t distinguish the two quite so neatly. Contract law is how contract lawsuits are resolved. And “breach” (with attendant justifications) isn’t a question of fact, really, but rather a mixed question of law and fact.
A.J. Sutter - June 28, 2010 at 12:12 am
(1) It isn’t clear that the notion of fault was involved in the determination of breach; from the description it seems to have been a mitigating factor only in the awarding of damages. Your “with attendant justifications” is kind of a question-begging fudge, isn’t it?
(2) As for contract law being constituted by how contract lawsuits are resolved,* this seems like a philosophical tar pit. E.g., the resolution of a jury trial isn’t binding precedent on anyone other than the parties. Moreover, that resolution turns on many factual issues — including the parties’ demeanor, their lawyers’ demeanor, and others that don’t have to do with the facts on record. Is this “contract law” in the sense of norm-creation? Is it contract law in the sense of what I as a practitioner need to know when I advise parties who are entering into a contract? (E.g., “Remember, if they sue you over section 3.5, wear a red tie when you go to court.”) Do you recognize any distinction between “law” and the enforcement thereof? Have you written anything where you expand on this idea in more detail?
*I’ve interpreted “Contract law is how contract lawsuits are resolved” analytically, i.e., as a definition of contract law, but it can also be interpreted synthetically, i.e. a declaration that all contract lawsuits are resolved in accordance with a body of contract law that exists independently of how lawsuits are resolved. Cf. the various types of ambiguity in “Time flies like an arrow,” or “The United States does not engage in torture.” I take it you didn’t mean the synthetic interpretation, right?
Dave Hoffman - June 28, 2010 at 12:30 am
Hi AJ,
Can you expand on the first point in your 12:12 am comment? I don’t understand what you are asking.
As for #2, I agree it is a tar pit, but “binding precedent” won’t help, since the trial courts don’t bind anyone, and the appellate courts bind only within jurisdictional boundaries. If we’re using precedent as the limiting theory of what “law” is, then is all work in the trial courts lawless? I did explore this a bit in an article I wrote on trial court work that wasn’t written into opinions. Though of course it is an old view, as you know, which is often lumped together as realism. I do think that contract law is exactly nothing more than a set of predictions as to how contract disputes will be resolved. This isn’t the same as saying it is all about the tie you wear — legal norms, written opinions, and jurisdictional-specific practices all figure in.
My point is this: comparative fault enters into the resolution of contract disputes far more often then you’d think if you read just the appellate opinions.
A.J. Sutter - June 28, 2010 at 1:31 am
Thanks for your reply, Dave — sorry, I think my brain short-circuited when writing (1). I see now that I had read “justifications” and thought something like “ramifications” (which would include damages); this mistake was the basis for my Q at the end of the paragraph. Please blue-pencil it. But the first sentence of (1) is still good.
Thanks also for the paper reference. I don’t disagree with your final point about comparative fault, but I don’t think you need your other, sweeping statements about the nature of “contract law” to support this conclusion.
Apropos of those other statements: I wasn’t saying it’s all about tie color, but rather that tie color and other courtroom behavior would be part of “contract law,” per your definition, which still seems to be the case. Also, to say that “contract law is exactly nothing more than a set of predictions as to how contract disputes will be resolved” is inconsistent with your 12:17PM formulation that contract law is constituted by resolutions of disputes. The reason is that a resolution isn’t a prediction. Even if we ignore your earlier formulation, and just accept the 12:30 AM (“predictions”) one, this performativity issue doesn’t go away: e.g., when an appellate court hands down a decision, it may be declaring a new legal rule. That rule isn’t at all a prediction. So are such decisions not part of “contract law”?
Off the top of my head, some other issues with the “predictions” formulation: First, it seems very much predicated on a rational calculator, Homo economicus kind of actor, which often is not how I see people behave in the real world when it comes to negotiating or performing contracts. Second, it also seems to ignore a lot about the expressive function of law within a polity.
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