Lessons with Contract and Partnerships on The Mandalorian

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December 13, 2019

The Sorgan Krill Farmers contracted with The Mandalorian in a contract for services that was straight out of Magnum PI: The Mandalorian would provide security services against raiders in exchange for lodging. While the Mandalorian and the Child were not in the guesthouse at Robin’s Nest, they did get a nice barn for their lodging with food services. Was that a valid contract?

Taking inspiration from Hawaiian law, a “landlord and tenant may agree to any consideration, not otherwise prohibited by law, as rent.” HRS § 521-21. In this case, the consideration is performance of security services. As there was not a written rental agreement between the parties as to the tenancy of a lease, the tenancy is a month-to-month lease. HRS § 521-22. However, as there was no written contract, the lease could be unenforceable under the statute of frauds. HRS § 490:2A-201. However, since there was contract performance by the Mandalorian and Cara Dune, this arguably would eliminate the statute of frauds issue. See, Shannon v. Waterhouse, 58 Hawai’i 4, 5-6, 563 P.2d 391, 393 (1977).

The contract for security services in exchange for lodging was likely valid, but does have an issue with the lease agreement not being in writing.

Was there a Partnership Agreement between Mandalorian and Cara Dune?

The Mandalorian immediately sought the assistance of Care Dune to assist in providing security services to the Sorgan Krill Farmers. Did this alliance form a partnership between the Mandalorian and Dune?

A partnership is “the association of two or more persons to carry on as co-owners of a business for profit forms a partnership, whether or not the persons intend to form a partnership. . . .” Hirschfeld v. Hirschfeld, 50 Conn. App. 280, 287 (Conn. App. Ct. 1998), citing Conn. General Statutes § 34-314.

The Mandalorian and Care Dune provided security services together for the Sorgan Krill Farmers, in exchange for lodging. Moreover, Dune was paid “lunch money” as her initial consideration to join the partnership. While neither truly followed the formal requirements to form of partnership, their conduct did show two individuals working together for profit. This is the classic definition of a partnership, or at least a joint venture.

Did the Sorgan Farmers fail to disclose a material fact about the AT-ST?

Not all surprises are good. The Sorgan Krill Farmers failing to tell the Mandalorian and Cara Dune about the Raiders’ Imperial Walker would fall into the “not good” surprise category. The issue for their security contract is whether the non-disclosure of that material fact could make the contract voidable. There are situations when a contracting party has a duty to speak about a material fact that can amount to concealment.

There can be a duty to speak about a material fact under four situations:

It may be directly imposed by statute or other prescriptive law;

It may be voluntarily assumed by contractual undertaking;

It may arise as an incident of a relationship between the defendant and the plaintiff; and

It may arise as a result of other conduct by the defendant that makes it wrongful for him to remain silent.

CACI No. 1901 citing SCC Acquisitions, Inc. v. Central Paciﬁc Bank 207 Cal.App.4th 859, 860 (2012).

The tort elements for concealment are:

1) The defendant must have concealed or suppressed a material fact;

2) The defendant must have been under a duty to disclose the fact to the plaintiff;

3) The defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff;

4) The plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and

5) As a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.

Boschma v. Home Loan Center, Inc. 198 Cal.App.4th 230, 248 (2011)

The Sorgan Krill Farmers would have had a duty to disclose their knowledge of the AT-ST, because the fact there was an Imperial Walker would have been voluntarily assumed by the contractual undertaking; that it would have arose as an incident of a relationship between the defendant and the plaintiff; and it was just wrong for them to remain silent about the Walker. That was a material fact that went to the performance of the contract and should have been disclosed. However, it is unlikely the Farmers intended to defraud the Mandalorian and simply were clueless to the importance of disclosing the fact the fact there was an AT-ST. This did require an immediate contract modification to teach the Farmers how to defend themselves, opposed to voiding the contract.

When Jawas Attack

By

Josh Gilliland

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November 20, 2019

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It is one thing to scavenge and another to steal someone’s personal property. In The Mandalorian episodes The Child, a group of Jawas in a Sandcrawler were caught stripping the Razer Crest for parts. Multiple issues explode out of this incident.

Grand Theft Jawas

The Razer Crest was the personal property of The Mandalorian. The vehicle was parked on the planet Arvala-7. The Jawas worked collectively to strip the Razer Crest of parts, its outer hull, engine parts, equipment, and the Mandalorian’s weapons locker.

Grand theft is when a person takes real or personal property of another with a value over $950 or when property is taken from an automobile. Cal. Pen. Code § 487(a) and (d)(1). While the interstellar exchange on Beskar is unknown, the value of the Razer Crest and the equipment onboard is easily over $950 in value. The Jawas committed Grand Theft with their stripping and pillaging of the ship, which understandably upset the Mandalorian.

Trading With Jawas for the Return of Stolen Property

The Jawas wanted to “trade” something of value in exchange for the parts to the Razer Crest. Normal contract negotiations include an offer, terms, acceptance, consideration, and performance. This is rather insulting when the trade is for the return of personal property. This raises the issue of economic duress, which is when “a wrongful act which is sufficiently coercive to cause a reasonably prudent person faced with no reasonable alternative to succumb to the perpetrator’s pressure.” Andrieu v. Aquantia Corp., H044638, at *13-14 (Cal. Ct. App. Nov. 21, 2018). Moreover, a party can rescind a contract if consent was “obtained through duress, menace, fraud, or undue influence.” CA Civ. Code § 1689(b)(1). Furthermore, statutory duress is when there is the unlawful detention of a person’s property. CA Civ. Code § 1569.

The Jawas demanding the Mandalorian to retrieve “The Egg” from a vicious wild animal in order to recover his personal property meets every meaning of “duress” in contract law. The Jawas found bold new ways to benefit from their lawless behavior, the most extreme in making someone risk their life for breakfast.

Adventures in Babysitting

The Mandalorian took his infant Target on a mission to storm the Jawas’ high speed Sandcrawler and on the worst egg hunt imaginable. This is in addition to fighting off Trandoshans and a gunfight with Jawas. Has the Mandalorian engaged in child endangerment?

California defines child endangerment as the following:

Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

Cal. Pen. Code § 273a(a).

Whether there has been child endangerment is highly fact specific. The Target’s bassinet following the Mandalorian while he attempted to board the Sandcrawler could have produced “great bodily harm” if the Jawas had fired upon the bassinet. The Jawas also deployed more medieval countermeasures of throwing objects at the Mandalorian, which could have caused injury if directed at the Target. However, since the bassinet was out of the line of fire from the bassinet, one can argue it was safer for the bassinet to follow the Mandalorian instead of being left alone in the desert.

The Mandalorian made the least dangerous decision by taking the Target with him to secure the Egg. Given the options to recover the parts were either leave the Target with Kuiil, who was with the Jawas who had expressed interest in the Target, the Mandalorian would have been rightfully concerned for the Target’s safety in the event more bounty hunters attacked or the Jawas turned on Kuiil. While leaving the Target to the side while confronting a large animal was not Plan A, it was the least bad option available to the Mandalorian.

A Public Policy Shootout over Contracts in The Mandalorian

By

Josh Gilliland

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November 19, 2019

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Long, long, ago, in a courthouse far away, it was said that the freedom of contract be not lightly interfered with. Baltimore Ohio c. Railway v. Voigt, 176 U.S. 498, 504-5 (1900). The Mandalorian is a story with parties entering contracts upon contracts. However, what contracts in the first episode were valid and which were not?

The Enforceability of an Oral Contract Entered During a Shootout

The Mandalorian met IG-11 while the droid started an armed assault on a compound holding the Target for their respective bounties. This created an awkward meeting, as the Bounty Hunters’ Creed states that No Hunter Shall Interfere With Another’s Hunt. The Mandalorian made the offer that they split the reward for capturing the Target, to which IG-11 agreed. What was not agreed upon was IG-11’s counter offer to acquire the Reputation Credits for the hunt.

The basics of contract formation are 1) Offer; 2) Acceptance; 3) Consideration; and 4) Performance. Moreover, “All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights.” Cal. Civ. Code § 1556. Furthermore, the question for California courts is whether there is mutual assent between the parties, which is “manifested by an offer communicated to the offeree and an acceptance communicated to the offeror.” Donovan v. RRL Corp., 26 Cal.4th 261, 270-71 (Cal. 2001), citing 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 128, p. 153.

From the context of the shootout, the Mandalorian made an offer for he and IG-11 to work together and split the reward. IG-11 accepted this offer verbally and by conduct. However, there was no mutual assent on the issue of IG-11 getting the Reputation Credits for the hunt. While that term was not agreed upon, a court could find there was a contract between the parties to split the profit from the hunt.

IG-11’s Bounty Claim Violated Public Policy

Whoever contracted with IG-11 to kill the Target violated public policy and the Bounty Hunter’s Creed. The Mandalorian was right to take protective measures against IG-11.

The Bounty Hunters’ Creed states that:

In the Hunt One Captures or Kills, Never Both

In cases where the acquisition had been taken alive, that “choice” could not be altered. To kill an acquisition in the course of the hunt was one thing, but to purposely kill an unarmed, helpless being already subdued and unable to resist was seen as simple slaughter and wanton butchery. An acquisition “killed while attempting to escape” however, would be an entirely different matter altogether.

The Mandalorian had a contract to capture the Target; IG-11 had a contract to kill the target. IG-11’s contract to purposely kill an unarmed and helpless being was a gross violation of the Bounty Hunters’ Creed. Whoever hired IG-11 did not want a Bounty Hunter, they wanted a butcher.

A contract to kill someone is not the work of a bail bondsman, but a murder-for-hire contract. It is grossly illegal to contract to kill someone, especially an infant. The legal term is solicitation. Anyone who solicits another to commit murder can be sentenced to state prison for at least three and up to nine years. CA Penal Code § 653f. This raises significant issues as to what kind of puck was issued with a kill order on an infant, the work of a bail bondsmen is to bring someone in, not play hit man.

Contracts cannot violate public policy, which was defined by Lord Brougham, “that no one can lawfully do anything which has a tendency to be injurious to the public welfare.” Maryland C. Co. v. Fidelity Etc. Co., 71 Cal.App. 492, 496-97 (Cal. Ct. App. 1925). A contract is void against public policy if it “clearly contravenes that which has been declared by statutory enactment or by judicial decisions to be public policy, or unless the agreement manifestly tends in some way to injure the public.” Spangenberg v. Spangenberg, 19 Cal.App. 439, 446-47 (Cal. Ct. App. 1912). As murder is clearly defined as being illegal and against public policy, one cannot enter a contract to murder another person.

I Have Spoken

Mandalorian Podcast on Chapter 1

By

Josh Gilliland

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November 14, 2019

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The Mandalorian is here and Gabby Martin, Thomas Harper, and I sat down to discuss the first episode of this awesome series. Can bounty hunters kill bail jumpers? When a contract is unenforceable because it violates public policy? Find out as explore these issues and all want a toy from the big shocker at the end of the episode.

Can IG-88 Enter a Contract?

By

Josh Gilliland

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November 1, 2019

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The Mandalorian will feature IG-11, an assassin droid, who is seen in a gunfight in the first two previews. This is not the first time we have seen an IG Droid. The first was IG-88, who appeared in The Empire Strikes Back. These autonomous killing machines have appeared in multiple animated series as well. This raises the question; can an IG Droid enter a contract? Bounty hunting is a complicated profession, especially if a bounty hunter does not meet the legal definition of “person.”

Who Can Enter a Contract?

The law states “all persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights.” Cal. Civ. Code § 1556, emphases added. There are multiple definitions of “person.” Consider these two examples:

“Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.

Cal. Com. Code § 1201(b)(27)

“Person” includes a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.

Cal. Evid. Code § 175

The legal definition of “person” includes those who are nature born human beings or legal entities that conduct business or services. Moreover, every “person” within a state such as California, is subject to its jurisdiction and entitled to its protection. Cal. Gov’t Code § 270. Furthermore, it is universal language in Constitutions to state that “all people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal Const, Art. I § 1, emphasis added.

The law does not address artificial intelligence, however the law does address “artificial persons” such as corporations. This raises the question; can a computer enter a contract? In the 1996 law review article Harvard Journal of Law & Technology that addressed whether computers could enter trading contracts, the essential question was whether the behavior manifested by the computer is roughly approximate to the behavior manifested by a person who understands that his or her actions may lead to the creation of a contract. Tom Allen and Robin Widdison, Can Computers Make Contracts? 9 Harv. J. Law & Tec 25, *39-40 (Winter, 1996).

Does any IG Droid understand that its actions can create a contract? This raises the issue of capacity.

Do IG Droids Have the Mental Capacity to Enter a Contract?

The law defines “capacity” to enter a contract as “a person’s ability to understand the nature and consequences of a decision and to make and communicate a decision, and includes in the case of proposed health care, the ability to understand its significant benefits, risks, and alternatives.” Cal. Prob. Code § 4609.

Case law goes further into describing contract formation requires that parties must have a “mutual understanding of what is being done.” Estate of Ginsberg 11 Cal.App.2d 210, 216 (1936).

IG-88 clearly understood that Darth Vader’s bounty was to capture the Millennium Falcon with the crew alive by any means necessary and no disintegrations. The terms were clear. While we never heard IG-88 speak in a film, the bounty hunter either understood the terms of the contract, and failed to capture the Millennium Falcon, or rejected the terms, and did not attempt to capture the Millennium Falcon.

What Will We See in The Mandalorian?

The ability for IG-88 or IG-11 to be able to enter into a contract will turn on whether they have the same behavior manifested by a person who understands that his or her actions may lead to the creation of a contract. While the law does not define artificial intelligence as a “person,” the law does recognize artificial persons such as corporations. If a IG droid can manifest an understanding that they have a contract, the law could recognize their ability to enter into agreements.

Poor Unconscionable Souls

By

Jordan Yakowenko

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April 13, 2019

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In 1989, The Little Mermaid made a splash in theaters for the very first time. The story centers around rebellious teenaged mermaid, Ariel, who longs to be part of the human world. Her journey from fins-to-feet is an adventure full of catchy tunes, fishy friends, and… unconscionable contracts?

Let’s get this straight. Ariel strongly desires to become human. Intrigued by the mystique of both her favorite shipwrecked treasures and allure of the human Prince Eric (which, let’s be honest who wouldn’t be?), she is willing to trade her fins in for feet and leave her family and friends behind in the water.

Preying on Ariel’s desire and naiveté, an evil sea-witch named Ursula provides Ariel with a contract and a magic potion to turn her into a human for three days. In order to remain human permanently, before sunset on the third day Eric must fall in love with Ariel. This requirement is satisfied by a kiss- the kiss of true love. If Ariel does not complete this task, she is to be turned back into a mermaid and “belong” to Ursula. Essentially, if Ariel does not convince Eric to fall in love with her, she is selling her soul to the sea-witch.

Seems legit, right? Oh, but it only gets worse.

Ursula quickly exclaims: “Oh, and there is one more thing- we haven’t discussed the subject of payment- you can’t get something for nothing, you know.” Ariel, being a sixteen-year-old mermaid does not have much money, but Ursula does not seem to mind her lack of riches. What Ursula asks of Ariel in exchange for human legs is her voice. Initially unsure, Ariel ultimately gets persuaded by Ursula to sign the contract by emphasizing the importance of her looks, her pretty face, and of course, body language!

Okay, let’s discuss the law on this subject. Under California law, if the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. Civ. Code, § 1670.5. To be found unconscionable, “both a “procedural” and a “substantive” element” must be met. A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486.

While both procedural and substantive unconscionability must be present for a contract or clause to be held unenforceable, there exists a “sliding scale relationship” between the two concepts meaning “they need not be present in the same degree.”  Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 83; Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1249.

Procedural unconscionability concerns the “manner in which the contract was negotiated and the circumstances of the parties at that time,” focusing primarily on factors of oppression and surprise. Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1319.  “Substantive unconscionability focuses on the one-sidedness or overly harsh effect of the contract term or clause.” Lhotka v. Geographic Expeditions, Inc. (2010) 181 Cal.App.4th 816, 824–825. The substantive element also concerns whether a contractual provision “reallocates risks in an objectively unreasonable or unexpected manner.” Id., 821.

In the case of Ariel v. Ursula, it is abundantly clear the Ursula is in the position of superior bargaining power (she is the magical sea-witch after all!). Of course, Ariel does not have much power to negotiate the terms of the agreement, making the contract for humanity in exchange for voice and potential soul ownership unduly oppressive. Also, the fact that Ursula waits until the end of her spiel to mention the method of payment, being Ariel’s voice, is most likely evidence that there is at least some surprise involved during contract formation. Thus, procedural unconscionability is most likely substantially met.

It must be noted that Ariel states, “If I become human, that means I’ll never be with my father and sisters again.” To this Ursula responds, “but you’ll have your man.” In defense of Ursula, this demonstrates that Ariel does understand the severity of the situation, and that there is at least some consideration on both sides of the agreement. However, due to the overly one-sided, harsh terms of the contract, a court would likely find that this agreement reallocates risks in an unexpected manner (i.e., if Ariel does not get Prince Eric to fall in love with her, she becomes one of Ursula’s possessions!). Thus, Ursula’s contract with Ariel would most likely be deemed substantively unconscionable as well.

The presence of high degrees of both procedural and substantive unconscionability makes this contract unmistakably unconscionable under California law. Though luckily Ariel gets the kiss from Eric and her voice back from Ursula, this contract would have undoubtedly been unenforceable from the start!

Enforceability of Life Debts

By

Josh Gilliland

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May 24, 2018

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Chewbacca: the Wookiee; the Myth; the Legend. He is the ultimate wingman. Loyal, wise, and damn huggable. Chewbacca was with Han Solo because Chewie owed Han a “life debt.” A life debt was a social custom that stated that if someone had saved a person’s life, then that person owed the one who had saved him or her something in return. Wookieepedia, Life Debt.

Courts would have an extremely difficult time enforcing a “life debt” as a contractual obligation. Contracts require terms with “reasonable certainty.” Restat 2d of Contracts, § 33(1) (2nd 1981). Contracts that had indefiniteness were considered fatal defects in earlier times. See, John Edward Murray, Jr, Murray on Contracts, Third Edition, Copyright 1990, § 38, page 83. Case law includes examples where someone promised to pay “a fair share” of their profits or where a lumberman agreed to provide logs in quantities deemed “reasonable and economical.” Murray, citing Varney v Ditmars, 217 N.Y. 223 (1916) and Smith v Chickamauga Cedar Co., 263 Ala. 245 (1955).

Modern courts have stated the “law leans against the destruction of contracts for uncertainty” and prefer finding agreements are “sufficiently definite.” Murray, citing In re Sing Chong Co., 1 Haw. App. 236, 239 (1980). However, an agreement to “care for a person” was found to fail for indefiniteness. Murray, citing Almeida v. Almeida, 4 Haw. App. 513 (1983).

The test for whether a contract survives indefiniteness is whether the “terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.”Restat 2d of Contracts, § 33(2) (2nd 1981).

A life debt potentially can be for an indefinite amount of time, possibly even decades, in order for the debt to be “repaid.” Moreover, Han and Chewbacca going on a series of adventures together (arguably in a partnership with fiduciary duties to each other), lack reasonably certain terms for the scope and duration of the life debt. Chewbacca’s life debt to Han Solo likely would fail for indefiniteness as a contract to “care for a person.” However, a sound legal strategy in cases involving Chewbacca is to let the Wookiee win.