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    The Little Mermaid is Back, but Ariel Still Needs a Lawyer, not a Court Composer, or: Ten Possible Ways to Void a Contract

    At a recent meeting, Leslie Scott, our Marketing Manger said, if you want to get ‘clicks’, write about something current.  In response, Associate Lawyer, Tanya Hewitt said, Ooh!  Like the live-action remake of the classic Disney animated film, ‘The Little Mermaid.’   True story.

    But I was in despair.  The idea was too good.  Someone had already done it.  I immediately thought of Season 6, Episode 5 of my favourite podcast, ‘Revision History’ hosted by Malcolm Gladwell – Little Mermaid Part 1: The Golden Contract.  An episode that, in part, talked about the work of Laura Beth Nielsen, Nehal A. Paten, and Jacob Rosner, in their article: “Ahead of the Lawmen: Law and Morality in Disney Animated Films 1960-1998.”

    But then I thought, isn’t everything a little bit derivative these days?  I mean, it’s not like Walt Disney started from scratch with ‘The Little Mermaid’ (not even the first time).  And besides, I’ve got a blog quota!

    In case you don’t remember the film, and haven’t yet seen the latest version, Ursula and Ariel sign a written contract.  Ursula will make a potion that will turn Ariel into a human for three days.  Before the sun sets on the third day, Ariel must convince Prince Eric to fall in love with her.  In exchange, Ariel gives up her voice.

    This was a seemingly ironclad contract.  Not even the mighty King Triton could break it.  The contract was “legal, binding and completely unbreakable.” 

    But was it?  King Triton probably should have had some kind of anthropomorphic lawyer[1] in his court to look that contract over.  If he did, he would have known that there often ways to void what seems like a binding contract, including the following:

    Capacity: A contract made by someone who is not mentally capable is generally not binding.  Did anyone think about the fact that Ariel is a minor?  Maybe not a problem in this case.  Children as young as 12 can consent to medical treatment in Ontario.  But can they contract to sell their vocal cords? 

    Illegality: The answer to the last question is likely ‘no.’  An illegal contract is void.  The courts generally frown upon minors selling their body parts on the black market (or to evil sea witches).

    Public Policy: A contract can be void for reasons of public policy.  For example, a bequest in King Triton’s will that is conditional upon Ariel marrying a Merperson might be considered void for reasons of public policy.  Also, maybe that selling of body parts thing.

    Unconscionability: This can arise in a variety of circumstances.  There are two major elements.  The contractual term is unreasonable and there is unequal bargaining power.  You know, like when a vulnerable minor contracts with a villainous sea witch who makes one-sided deals with desperate merfolk.

    Duress: A contract can be void where a party is pressured into signing.  “He put a gun to my head.”  Literally, or more likely figuratively.  For example: “If you don’t sign this, I’m going to let your Dad know that you have been storing Dinglehoppers without his permission.”

    Fraudulent Misrepresentation: The old bait and switch.  A party is induced into signing a contract based on false information.  Maybe you wouldn’t have agreed to buy that swampland in Florida if you had known it couldn’t be developed into condominiums.  Of course, good ole Walt seemed to do alright with his Florida swampland!

    Frustration: You might think of this as the “sometimes this happens” doctrine.  An unforeseen event occurs that changes the parties’ ability to perform the contract.  Think acts of God.  For example, what if poor Prince Eric was hit by a bus and killed?  This would make it impossible for Arial to follow through on her end of the bargain. 

    Mutual Mistake: Sometimes both parties are mistaken about something important in the contract.  For example, what if there were two handsome princes named Eric living in the castle?  If Ursula thinks they are talking about Eric #1 and Ariel thinks they are talking about Eric #2, it is quite possible the parties did not agree to the same thing and there is no binding contract.  What?  You think two princes named Eric is more farfetched than a crab that conducts an orchestra?

    Unilateral Mistake: Sometimes a unilateral mistake can void a contract.  This usually only when one party is mistaken, and other party knows about the mistake or causes the mistake.  Let’s say “Prince Eric” was actually the name of that drooling sheepdog.  If Ursula knew that, but allowed Ariel to sign the contract thinking Eric was a handsome prince, there is a good chance the court might void the contract.  (Ew-gross…dog drool!)

    Lack of Consideration: To have a binding contract, the parties need to exchange something of value.  In the movie, Scuttle and Sebastian offer to help Ariel win Prince Eric’s heart.  Unfortunately, if these two lovable rascals decide to dip out on Ariel, they are probably not contractually bound to help her.  They are getting nothing in return.  (Let’s leave the debate about whether there is truly a selfless act for the philosophers…or at least another blog post…)

    What’s the bottom line?  Don’t lose your voice.  If you find yourself dealing with a contract that does not seem fair, seek legal advice.  Don’t end-up a poor unfortunate soul! 

    [1] A shark.  You know it would have been a shark.  Unless it was a weasel wearing a diving suit, à la Sandy Cheeks the squirrel in Sponge Bob.  Such hurtful stereotypes…

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    Posted By: of Merovitz Potechin LLP