*This isn’t an April Fools’ prank!*
I had been vaguely aware of the “Fifty Shades” trilogy, described in this Maureen Dowd column as “bondage-themed romanticas that have evoked hysteria, whipping up a frenzy with the housewives of Long Island and rippling out from there.” They feature a dashing mogul, Christian Grey, and the object of his stern affections, the winsome Anastasia Steele. (The names alone scream “Crushingly banal!”)
Even though I apparently live in the epicenter of this phenomenon, I had been prepared to ignore it. After all, I’m hardly in the target demographic. But I saw in Dowd’s column that the first volume, “Fifty Shades of Grey
,” contains a contract, so of course in the name of art I had to check it out.
Five minutes later and $9.99 poorer, there before me on my Kindle was the contract in question, in chapter 11. If I could be bothered to read the book itself, I might end up with a more rounded view of the Mr. Grey. But based on the ponderous and mealy-mouthed prose of his contract, he’s no hunka hunka burning S&M love. Ms. Steele might be at risk of falling asleep before the first thwack of a riding crop, or whatever.
Grey is a telecommunications mogul, and he has evidently absorbed the semi-literate contract verbiage regurgitated by his high-priced lawyers. Let’s consider just a few of the contract’s failings:
- Section 3 says “The Dominant and the Submissive agree and acknowledge.” Hmm—two categories of contract language, neither of them appropriate. And what do they agree and acknowledge? That “all that occurs under the terms of this contract will be consensual.” That’s language of policy, suggesting that all acts will automatically be consensual. I don’t think so.
- Section 3 also says that “all that occurs under the terms of the contract … will be subject to the agreed limits and safety procedures set out in this contract.” Redundant!
- According to section 4, “The Dominant and the Submissive each warrant that they suffer from no … illnesses.” Great—there’s nothing like inappropriate sales-contract jargon to dampen ardor. It goes on, “… including but not limited to HIV, herpes, and hepatitis.” Grey really is a fan of the knee-jerk traditional usages.
- Section 4 also addresses what happens “If during the Term (as defined below) or any extended term of this contract either party should be diagnosed with” specified illnesses. The term references are redundant. And the “should” is archaic.
- Section 5 says “Adherence to the above warranties, agreements, and undertakings … are fundamental to this contract. Any breach shall render it void with immediate effect and each party agrees to be fully responsible to the other for the consequence of any breach.” I’m not familiar with the notion of “fundamental provisions,” except perhaps for purposes of severability provisions. And I’m not sure that in this context rendering a provision void on breach serves any purpose. And the parties agree to be fully (rhetorical emphasis!) responsible for breach? Is that somehow different to what applies elsewhere in the contract?
- Section 7 says that Grey “shall take responsibility for the well-being and proper training, guidance, and discipline of the Submissive.” It was inevitable that Grey would overuse “shall,” here and elsewhere. Section 7 also says that Grey “shall decide the nature of such training,” but presumably this should be language of discretion, not obligation.
- Section 9 uses “is to” to convey an obligation of the Submissive. How many different usages does Gray need to use to convey obligations?
- Section 10 refers to “expiry” of the Term. Hmm, an English usage. The first book is ostensibly set in the U.S., but perhaps Grey spent some of his formative years in an English boarding school, regularly administering “six of the best” with enthusiasm.
- Section 15.3 says that “The Dominant shall provide the Submissive with all necessary training and guidance in how to properly serve the Dominant.” Hey, wasn’t that covered in section 7, as noted above?
- Section 15.10 says “The Dominant shall not loan his Submissive to another Dominant.” Abuse of defined terms! Steele is defined as “the Submissive,” so there can be no other “Submissive.” Similarly, Grey is defined as “the Dominant,” so there can be no other “Dominant.”
- Appendix 1 says that Steele has to keep herself “shaved and/or waxed at all times.” Does she really want to be both waxed and shaved at any given time? Sounds painful.
Enough! I can’t take any more. If I were Ms. Steele, I would clap Mr. Grey in irons and vigorously administer to him, for his contract-drafting sins, a taste of his own medicine.
Regrettably, this does sound like an British English contract of a certain vintage. Fundamental breach (and its half-sister, breach of a fundamental term) was a concept that English judges promoted for a time, as a category that rendered exclusion clauses ineffective. Lord Denning was keen on the concept, but Lord Diplock stamped on the idea in a leading case in 1980, and we haven’t heard much about it since. Incidentally, the two of them loved to feud. Lord Diplock once defined a contract as a bisynallagmatic agreement, and Lord Denning made some caustic remarks in a subsequent case about having to look the word bisynallagmatic up in the dictionary.
Given the other slang meaning of fundament… (but I won’t continue that line of thinking).
Should you add a new category of contract language, the language of submission?
Mark: Ah, it all makes sense now! I recall that the author is English. She presumably used as a model some contract that was close at hand. Ken
By the way (getting my defence in a little late) I assume this posting isn’t an elaborate April Fool?
I am suprised that Mr Grey hasn’t included the following warranty in his contract. This is taken from a contract on which I advised a couple of years ago:
The Talent warrants and represents that… the Talent has no criminal record, that the Talent has not appeared in pornographic films of any description, that the Talent is not an alcoholic, that the Talent has not taken any prescribed drugs and that the Talent has not been involved in any activities which would bring the Talent, the Company or the Product range into disrepute or ridicule or which could in any way damage or discredit the Talent, Company or the Product range.
Mark: I’d forgotten that it was April Fools’ Day! I’ve added a note at the top to assure readers that this ain’t no prank. Ken
As a current writer of bdsm erotic romances – and a former lawyer – I cannot stop snickering. Thank you for this!
Eric: Yes! It will be Koncision’s breakout product! Ken
Awesome post, Ken.
Presumably the contract would be unenforceable in any case, as there was no intention to be (legally) bound?
W: I didn’t consider enforceability, but I imagine that any such contract might well be enforceable. For one thing, there’s consideration—each party is undertaking to provide the other services.
And in the U.S. it’s not a condition to enforceability that the parties have, or express in writing, an intent to be legally bound. If that’s not the case in England, I’d find that disconcerting.
Ken
In England, it is one of the requirements for the formation of a contract (along with offer/acceptance and consideration) that the parties have to intend to create legal relations. There is presumed to be such an intention in commercial contexts (unless proved otherwise), and presumed not to be in family contexts (again, unless proved otherwise).
But I mainly just wanted to get the pun in.
In Canada, we still have a concept of “fundamental breach”, which allows an innocent party to a contract to elect to repudiate the contract if the other party breaches a material term of the agreement. The breach has to be significant enough to effectively deprive the innocent party of “substantially all of the benefit of the agreement.”
Enforceability is an interesting issue. Also in Canada, if a term of the agreement is too vague or imprecise, a court might decline to enforce it. So Grey’s obligation to provide all of the instruction and discipline necessary might be unenforceable because no court could determine when this obligation had been satisfied, or breached.
Hilarious post!
Ken, interview with the author in yesterday’s Times (London). (I know, what is the world coming to…) It seems she studied medieval history at university, and worked on trashy TV shows such as Noel’s House Party.
A very entertaining post, Ken. I cannot help but wonder though whether Mr Grey (or his attorney), in drafting the contract, considered the House of Lords
judgment in R v Brown [1994] 1 AC
212 in which it was held that consent to sadomasochism cannot be used as a
defence to a charge of assault. (Interestingly, none of the, ahem, Submissives, in that case
laid any charges. The S&M was uncovered by the police.)
I’m reading this book and just read the ‘contract.’ I decided to Google if anyone has commented in this badly drafted document. Main problem under US law, there is no adequate consideration in this document, thus is unenforceable ab initio. Apparently Mr Grey billions are spent in BDSM toys instead of legal counsel.
Get over yourselves !!! it’s escapist nonsense …but a damn good read ..people who review books like this take it far too seriously in my opinion!!!…just take it for what it is …if you don’t like it ,don’t read it !!!
Parr0t62: Besides noting that it isn’t my cup of tea, I have little to say about the book itself. My subject is contract prose, and it so happens that the contract in the book, like contracts in real life, is full of pompous piffle. As such, it allows me to have a bit of fun while making a broader point.
As for getting over myself, that’s a lost cause! I’m a hard-core, pointy-headed contract nerd.
Ken
Ooops!!!….I really should look at the title of the website I’m voicing my opinions on ….I mistakenly thought it was a book review site …please accept my apology ,as you can probably tell I’m not a nerd of any kind !!! Just someone who enjoys trashy novels :)
Thanks for your reply
Deb