July 31, 2012
The previous post about the Fifty Shades of Grey contract concluded that all of the requisite contract elements are present and that the contract is, in fact, valid and legally enforceable.
But which provisions are enforceable?
The last post looked at different possible types of consideration in the contract, and those different types help shape the form of the contract.
Specifically, if the Submissive’s consideration is “to allow [her] to explore her sensuality and her limits safely, with due respect and regard for her needs, her limits and her well-being,” then the contract is a mutual services agreement.
Under such circumstances, a breach would occur if either party should fail to perform one of the services required of them.
The problem arises here because many of the provisions detailing the services required under the contract are unenforceable.
For example, section 15.13 states:
The Submissive accepts the Dominant as her master, with the understanding that she is now the property of the Dominant, to be dealt with as the Dominant pleases during the Term generally but specifically during the Allotted Times and any additional agreed allotted times.
This is obviously unenforceable because slavery is illegal.
The same goes with the provisions compelling the Submissive to submit unwillingly to medical treatment, and those requiring the Submissive to “submit to any sexual activity demanded by the Dominant…without hesitation or argument.”
Normally, it would seem that the prevalence of these provisions in the contract (they constitute at least half of the entire document) would cause a court to just declare the contract void in its entirety.
However, the contract’s saving grace here is it states “that all that occurs under the terms of this contract will be consensual.”
In any other kind of contract, this clause would seem superfluous; here, though, it serves to reinterpret the provisions compelling the Submissive to engage in any kind of behavior – sexual or otherwise.
These provisions aren’t to be taken literally.
Instead, they merely lay out the expectations of the parties as to what the Dominant/Submissive relationship would entail.
It is highly unlikely, then, that any portion of the contract, when viewed as a mutual services agreement, is actually enforceable as to nearly any of the specific terms.
Rather, the contract would be more akin to a liability waiver (which is still a contract nonetheless).
Nevertheless, the second interpretation would view the contract much more traditionally.
If the Submissive’s consideration is the pleasure of her company, and Grey’s consideration is, as described last week, the car he purchases for all of his Submissives, the contract is of an employment nature (especially in light of the specific contract term of three months).
This certainly would make the contract far more enforceable than the first interpretation, but, again, provisions such as those that compel sexual performance would still be unenforceable.
So what parts would be enforceable?
The Submissive would be in breach if she didn’t show up at his apartment during the specified times and days (Friday evenings through to Sunday afternoons), and, depending on the judge, if she refused to participate in any of role-playing specified in the contract.
Grey would be in breach if he never paid up.
Should the Submissive breach, Grey would be able to collect the cost of the automobile, probably minus any work already performed by the Submissive (i.e., should she breach after one month of performance, Grey could collect 2/3 of the cost of the car).
Should Grey breach, the Submissive could collect the cost of the car for however much of the term that she successfully completed.
Given the headache that any judge would get trying to make heads or tails of the mutual services interpretation, the second interpretation would likely be the prevailing one in court.
This would mean that the Submissive would be akin to an escort, and that Grey habitually retained escorts prior to his meeting Ms. Steele.
In other words, all of Grey’s previous submissives would likely be viewed in court as nothing more than his former employees.
I apologize to any Fifty Shades readers if I’ve taken away some of the romance of the novels.