Law geeks will enjoy this immensely. Is there an enforceable contract between The Dark Lord, Sauron, and Dain, King of the Dwarves, regarding the finding of The Ring? The passage in question:
"As a small token of your friendship Sauron asks this," he said: "that you should find this thief," such was his word, "and get from him, willing or no, a little ring, the least of rings, that once he stole. It is but a trifle that Sauron fancies, and an earnest of your good will. Find it, and three rings that the Dwarf-sires possessed of old shall be returned to you, and the realm of Moria shall be yours for ever. Find only news of the thief, whether he still lives and where, and you shall have great reward and lasting friendship from the Lord. Refuse, and things will not seem so well. Do you refuse?"The further analysis by commenters is nearly as good as the original analysis. [See the link above!] As Dain's attorney though, I'd like to mention that we have another defense we intend to present to the claims of breach of contract brought by Sauron and his heirs. If the many other issues of offer and acceptance, the Statute of Frauds, etc. are resolved favorably to Sauron, then it is still my client's claim that this "contract" should not be enforced because it is clearly unconscionable.
--The Fellowship of the Ring, in "The Council of Elrond"
There are both procedural and substantive aspects of unconscionability, and both are present in the instant case. Procedural unconscionability involves either oppression or unfair surprise. Both procedural flaws exist here.
Oppression is present in the form of an inequality of bargaining power. One might argue that no one has the bargaining power of the Dark Lord Sauron and hence that any purported contracts he enters are thereby unconscionable. But this proves too much. Rather, we argue that Sauron's failure to disclose the true nature of the "trifle", the failure to disclose the presence of a balrog in Moria, and the implied threat for non-acceptance all contributed to an inequality of bargaining power.
Further unfair surprise exists here because the undisclosed terms of this agreement were not merely hidden in a prolix form contract, but were absent altogether from the oral negotiations. Nowhere does Sauron disclose that a term of the contract will be the subsequent enslavement of the wills of all formerly free people to the power of the One Ring. In such a context, it is unclear that the promise of "lasting friendship" could amount to consideration at all. For friends must be freely chosen, and enslaved minds make no free choices about their friends. And the three rings that would be returned, as mere tools of the aforementioned enslavement, also fail to constitute the bargained-for consideration. Further, since plaintiff himself admits that the three rings were possessed by the Dwarf-sires of whom my client is heir, he cannot be expected to bargain for what is already rightfully his.
Finally, substantive unconscionability is also present. Given the now-disclosed power of the One Ring bargained for, its value is incalculably great. Sauron's representatives argue that the three rings, the land of Moria, and his lasting friendship are of significant value. However, as has already been explained, these items are of dubious value. The three rings are mere tools of enslavement, the land of Moria is inhabited by a Balrog and infested with orcs, either of which decimate its market value, and Sauron's lasting friendship is a hoax, as what he really provides is mind-controlling enslavement, rather than beneficial friendship. So on one side, my client is expected to provide an item of infinite value in exchange for items whose sum value is essentially zero. No more substantively unconscionable transaction could be imagined.
Striking the unconscionable terms of this contract leave nothing to enforce, therefore my client humbly requests this "contract" be vacated.
Posted by Brian at January 19, 2004 07:16 AM | TrackBack