Poor Richard, can we view his declaration as a bona fide offer of sale? Can our enterprising young soldier with a heart of gold, caked in the dirt and sweat of battle, simply hand over his horse and get the keys to the castle?
This type of contract would fall under the doctrine of the Statute of Frauds, which requires that any contract to sell land may not be enforced unless a memorandum of it is written and signed (at least by the party who we wish it to be enforced against – in this case Richard). So there is no way a court would uphold Bill’s acceptance by word: “Yes, I shall give you my horse.” Or deed: handing over the reins to his diminutive Shetland in exchange for the future reign of Shetland in its entirety.
However, I disagree with my learned literary colleague as I do think this aged hypothetical could lead to a binding contract with one minor modification.
What if our clever young soldier is a bit more capable than we give credit for? Well instructed in his letters and steady riding, he quickly constructs a written memorandum stating, “In return for my friend Bill’s beautiful Shetland Pony, I, Richard III, humpback of considerable proportion, do hereby exchange my Kingdom along with all lands, titles, etc...”
He rides up to Richard, presents the paper, and Richard signs on the dotted line. Would this be an enforceable contract?
I think there is a wonderful argument to be made in Bill’s favor. Let us assume that by benefit of Bill’s courageous and incredibly fierce pony, Richard goes on to completely annihilate Richmond’s forces. Days later, Bill approaches Richard dressed in his finest sack-cloth suit and congratulates him on his cunning win mentioning, as an aside, that Richard now owes him his entire Kingdom and could he please deliver it within the fortnight.
Richard, infuriated at the gall of this Anglo-Saxon knave, has him thrown out in the street and Bill sues for breach of contract.
Richard’s well paid barristers will certainly argue that this is not a binding contract starting with their reasoned analysis of the doctrine of consideration: requiring a bargained-for exchange to constitute an enforceable contract. They will say that because Bill’s pony represents such a minute fraction of the commercial value of the Kingdom of England that it constitutes only nominal or sham consideration and should not be taken as a legitimate fulfillment of detriment (the relinquishment of a legal right necessary to establish consideration and, thereby, an enforceable contract).
Fie! Fie I say to them. Why should Bill’s brilliant Shetland not be seen as proper consideration? Its value does not derive from its relatively limited commercial salability, but rather from its fierceness as a weapon of war. We can reasonably interpret Richard’s call for a horse as a last chance request for the requisite weapon to recompense Richmond. To Richard, the horse is a tool for him to re-enter the fight, and even win. At this point in the fight I think we can certainly entertain that, given the choice between dying and handing his Kingdom over to Richmond and living and handing his Kingdom over to his loyal soldier Bill, Richard may well have chosen the latter.
Interpreting the contract in the context of the relative value of the pony, I think Bill’s brother-in-law, a young but budding legal mind in contracts law, will have a very compelling argument to make.
Certainly, Richard’s representation will not give up there. They will immediately point to the battle during which Richard signed the contract and argue that improper bargaining was at play. “Poor Richard was under duress! He had no choice but to sign the contract to avoid being slaughtered unmercifully.”
However, the duress doctrine should be used only when there has been wrongful bargaining conduct, and should not be misapplied to overturn a tough contract simply because one of the parties has managed to use bargaining advantage effectively. Bill wasn’t using any hard sell tactics or improper coercion, he was simply responding to a proposal made by Richard. Bill shouldn’t be punished just because he saw an opportunity for economic gain and went for it.
Likewise, relief for duress is premised on wrongful coercion by one of the contracting parties, and that party must usually be responsible for the threat that induces the contract. In this case, the threat is made by a non-party in the form of the invading Richmond who threatens to kill Richard in his attempted accession to the throne. To clarify: the invading Richmond could not ride up and make the offer to exchange his horse for Richard’s Kingdom, as my colleague suggested, because Richmond is clearly causing a physical threat and putting Richard under extreme duress. However, the loyal soldier Bill is not causing a threat of any kind and, because of this, the contract could remain enforceable.
It is certainly possible that, because Richmond’s threat is one specifically of physical force, a court could reason, furthering the policy of avoiding violence in society, that this physical threat may be serious enough to render the contract void. However, I think the court would have to consider that Richard’s actions leading up to the rebellion were in such incredible bad faith that this threat is arguably a result of his unlawful and tortious actions. Richard has spurred his enemies into creating the life-threatening situation before him and he should not be allowed to slough off responsibility for the situation. He contributed, through actions and words, to the threat he experienced on the field of battle, and I think the threat should be considered with this in mind.
Similarly, Richard is in the business of making war. His life is constantly in danger because he is in a position of power and must make numerous decisions under the threat of physical violence. Should he be able to renege on all agreements he makes in his efforts to win battles and avoid those dangers? Would we allow him to avoid a contract signed under similar circumstances for five hundred bows and five thousand arrows in return for five hundred pieces of gold? I think not.
Lastly, Richard’s lawyers will point to his state of mind at the time of contracting. “He was crazy, a total nutter,” they will say. I am sure that much has been written about the psychological state of Shakespeare’s Richard III. There may be an argument for this, but the burden will lie with Richard to prove that he suffered a mental disability so severe as to preclude formulation of the requisite contractual intent. I think Richard’s conniving actions and eloquent speech betray his soundness of mind at the time of contracting, and I think a court would find the same.
There are numerous ancillary and alternative arguments to be made with respect to the state of law in the late fifteenth century, far beyond the legal expertise of a this young 0L. Likewise, Bill would have quite an uphill battle in being awarded damages of the entire “Kingdom.”
That said, I think we should give Bill and his surefooted horse their due in the context of modern contracts law, and there is an awfully fun argument to be made to that end.
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