July 24, 2012
The Fifty Shades of Grey series is, in case you’ve been living under a rock for the past few months, one of the biggest crazes in mainstream literature today – an impressive feat considering the erotic nature of the books.
Those familiar with the books may be aware of one of the central elements of the first installment – the contract.
This contract is used essentially as a literary device to explicitly lay out the terms of the intimate relationships insisted on by the male protagonist, the eponymous Christian Grey.
After the female protagonist, Anastasia Steele, examined the contract, she stated, “My research has told me that legally it’s unenforceable.”
But is it?
True, it is certainly shoddily written, but not enough so to render the contract defective in its entirety.
But I’m getting a bit ahead of myself by talking about the language and terms of the contract before looking at whether the essential contract elements are present.
There’s clearly been an offer: the drafting of the contract and furnishing of it to Ms. Steele.
However, as those of you who have read the first book will be quick to point out, Steele never signed the contract, so there isn’t any acceptance.
Nevertheless, Grey stated that other women with whom he’s been intimately involved have signed the contract, so there was acceptance with another party.
What about consideration?
Believe it or not, it’s there.
As far as the consideration that Steele gives to Grey, there are two different theories.
Under the first, Steele provides Grey with the pleasure of her company (kind of like an escort service).
Under the second, Steele works as a model/actress for Grey, performing the kind of acting/role-playing that satisfies the eccentric billionaire’s sexual deviations.
Either way, it’s valid consideration.
What consideration would Steele receive?
The simplest theory is that Grey provides a service: “to allow the Submissive to explore her sensuality and her limits safely, with due respect and regard for her needs, her limits and her well-being.”
Although that’s probably enough consideration to form a binding contract, it never hurts to have a backup.
And that backup theory is monetary in nature.
The contract specifies that the Dominant [Grey] provide the Submissive [Steele] with a clothing budget, a personal trainer, and costs to cover beauty salon visits.
Since these costs are incident to the Submissive’s performance under the contract, they cannot be considered independent consideration.
As those of you who have read the second book know, Grey buys a car for all of his “submissives.”
In fact, he buys the same exact type of car every time.
It if were understood at the formation of the contract that Grey was expected to purchase said car for the Submissive, that would constitute adequate consideration.
The parol evidence rule wouldn’t come into play here because (1) there isn’t a merger clause, and (2) Appendix 3 of the contract makes explicit reference to outside evidence.
So we have consideration, but did the parties actually intend to create legal – rather than personal – relations?
Well, the fact that such a contract was drafted to begin with seems like a pretty clear indication of the legal relationship created by the document.
There you have it: all four contractual elements are met.
But the contract is still unenforceable if its purpose is unlawful.
In other words, if the contract were for something illegal – say, paying for sex – it would be unenforceable.
Despite common preconceptions to the contrary, the contract isn’t for sex.
True, sex is mentioned a lot.
However, if a court were to strike all of the provisions referencing sexual intercourse of any kind, we’d still be left with a cognizable contract.
Moreover, any concerns about this being a contract for slavery are unfounded.
The dominant-submissive relationship referenced in the contract is purely recreational; the submissive is not actually selling herself as property.
So it appears that the contract is, for the most part, legal and binding.
But how would one go about enforcing it, and what kinds of remedies could he or she legally seek?
We’ll cover that in the next part of this series!