The Law of Superheroes

by James Daily

  In this case, Batman has made a clear offer to a particular group of people and has made it very clear that he intends to be bound by the terms of the contract. So whatever else we’ve got, we’ve got an offer.

  The Acceptance

  Once an offer is made, the contract isn’t formed until the other party accepts the offer. Sometimes acceptance is verbal (e.g., saying “I agree”), sometimes it is written (e.g., signing a contract), and sometimes it is an action (e.g., showing up with a lost pet in order to collect a reward offered for its return). The person who makes the offer is generally permitted to set the means by which an acceptance can be made (e.g., requiring that acceptance be in writing). Because there is no contract until the offer is accepted, an offer can be revoked (almost) any time before the acceptance.

  Note that the acceptance must be of the terms that are offered. If a party disagrees to the terms or suggests alternate terms, this is not a modification of the offer. It is a rejection of the offer and possibly a counteroffer. The original offering party is now free to treat this as any other offer and may accept or reject it in turn.

  Furthermore, the acceptance must be clear. If Batman says, “I’ll pay you to help Gotham if you agree to these terms,” and the villains say, “We’ll think about it,” that isn’t acceptance. They have not objectively manifested their agreement and acceptance of the terms of the contract.

  Lastly, remember that the person making the offer has the right to determine the means of acceptance. If Batman says that acceptance must be in writing, and the villains simply go out and start helping without signing anything, Batman doesn’t have to pay them, because they did not accept the offer under the terms he laid out. If, on the other hand, Batman said that he would pay any villain who assisted and complied with certain terms, the villains could still accept in writing if they so chose, but they could also accept verbally—“I’ll take it!” They could even just go out and start helping and then turn around and demand payment if they had complied with the terms, that is, accept by performance of the contract. 5

  In this case the contract was in writing and required a written acceptance by “the undersigned.” When the villains signed the contract they became bound to uphold their end of the bargain.

  The Consideration

  You might think “consideration” has something to do with thinking about the contract before agreeing to it (“considering” it). But actually, “consideration” requires that the contract involve something of value on both sides. Think about how someone might say “In consideration of the payment specified, the undersigned agree to assist the citizens of Gotham as follows…” Consideration is what separates a contract from a gift. A promise to give someone something for nothing is generally not enforceable. 6

  Don’t be confused by the word “value,” though. Consideration does not have to be particularly valuable or even proportional. In fact, a single peppercorn can be sufficient; it only has to be acceptable to the other party (i.e., enough to make them accept the contract). 7 Consideration can even be something that is actually good for the person making the promise (e.g., “I will pay you $100 if you give up smoking.”). 8 One catch, however, is that consideration cannot be something that the party was already legally obligated to do. So, for example, promising simply to obey the law is not enough (e.g., “I will pay you $100 if you promise not to run any red lights.”).

  Almost anything can be the subject of a contract, but there are some exceptions. For example, you can’t make a contract to do something illegal, 9 so a contract to kill someone isn’t an enforceable contract. If a supervillain hitman like Bullseye does the job but doesn’t get paid, he can’t go to court to enforce the contract. In this case, the villains are promising to help rescue survivors of the earthquake and fire, which is of course entirely legal. In fact, the contract specifies that they have to avoid breaking the law while doing so. Furthermore, the villains are paid money for the job, and the amount is apparently acceptable since they took the job. It’s true that the contract requires the villains not to break any laws while carrying out the job, but they also have to promise to help survivors. They are already legally obligated to do the former, but not the latter, so the contract stands.

  Breach and Damages

  What happens when a party to a contract doesn’t fulfill its end of the bargain? This is called “breach of contract,” and the result is that the other party can sue for damages. In the case of Batman’s contract with the villains, one of the villains breaks the rule against using guns. But what would Batman’s remedy be?

  There are several ways that someone can be harmed by a breach of contract. For example, it may cost money in order to put things back the way they were before the contract was formed (e.g., Batman probably wants his money back). These are called “reliance damages.” Or, it may cost money to complete the contract (e.g., Batman may have to spend time and money to find a replacement villain). These are called “consequential damages.”

  Alternatively, the parties can agree to damages ahead of time. Batman’s contract with the villains might have said, “If a party breaches this contract, that party will pay the non-breaching party one thousand dollars.” These are called “liquidated damages.” Generally speaking, courts frown on liquidated damages when they are used to penalize a breaching party, but they are actually favored where the risks of a venture are difficult or impossible to estimate. 10 By agreeing to damages ahead of time, the parties can control risk, not to mention save themselves and the court a significant amount of time and effort trying to figure out exactly how much a particular breach costs.

  Contracts with the Devil

  Several comic book characters, including Ghost Rider and Spider-Man, have made deals with the Devil, or at least a demon. The Faustian bargain is a long-standing literary trope, and sometimes the demon is outsmarted and sometimes not. Ignoring for the moment the difficulty of bringing a suit against a supernatural being, 11 we can consider whether these contracts are valid, at least by the standards of American law.

  Ghost Rider and the Meeting of the Minds

  In the classic Ghost Rider origin story, stuntman Johnny Blaze sells his soul to the demon Mephisto in exchange for Mephisto curing fellow stuntman Crash Simpson’s cancer. As a traditional Faustian demon, Mephisto upholds his end of the bargain in a very literal way: Crash’s cancer is cured, but he dies shortly afterward in an accident.

  This works out about as well as one might expect. Gary Friedrich et al., Ghost Rider, in MARVEL SPOTLIGHT (VOL. 1) 5 (Marvel Comics August 1972).

  This raises a significant issue. Johnny thought selling his soul would save Crash’s life, but he only changes the way in which he died. Could Johnny argue that Mephisto twisted his words and claim that Mephisto has breached the contract by not saving Crash’s life?

  The question comes down to whether this scenario constitutes a legitimate “meeting of the minds” as discussed earlier. That is, “there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms.” 12 In other words, everyone needs to be on the same page.

  So far that sounds good for Johnny, since he and Mephisto have different ideas in mind. However, it would be problematic if parties to a contract could so easily claim, “That’s not what I meant!” after the fact. To solve this problem, the courts judge a contract by an objective standard rather than the subjective mindset of the parties. “In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look…to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds.” 13 Johnny seems to understand and agree to the terms of the deal, so it is unlikely he could claim differently afterward.

  All is not necessarily lost for Johnny, however. There are several ways to “avoid” a contract, and Johnny might claim mistake, undue influence, or unconscionability. Notably, he can’t claim that the contract
was made under duress because duress requires that the contract be induced by a wrongful threat. 14 In this case, Mephisto doesn’t threaten to do anything illegal if Johnny doesn’t agree to the contract, so no dice there.

  Mistake

  Johnny could argue that Mephisto knew full well that Crash was doomed to die (in some versions of Ghost Rider’s origin, Mephisto actually causes the accident). As a result, Johnny is laboring under the mistaken belief that selling his soul would save Crash’s life. Prolonging Crash’s life is Johnny’s entire purpose in entering the contract, so when he dies at almost exactly the same time he would have if he’d just kept on with the cancer, Mephisto would be claiming Johnny’s soul in exchange for essentially nothing. This would probably be considered “unconscionable” (more on that later). 15 Since Mephisto knows the truth, i.e., that Crash is going to die in a very short time regardless of whether or not the cancer is cured—and knows that Johnny didn’t—the contract should be voided. 16 To do otherwise would unjustly enrich Mephisto. 17

  Undue Influence

  Undue influence is not commonly used to void contracts because of the high burden of proof often placed on such claims. 18 Undue influence may be found when there has been “unfair persuasion of a party who is under the domination of the person exercising the persuasion.” 19 Among the factors that may be considered in determining whether undue influence was present are the unfairness of the sale price, the absence of independent advice and counsel, and the susceptibility of the party. 20 In this case, the sale price was arguably unfair, Johnny doesn’t have any independent advice or counsel, and his youth and concern for Crash makes him susceptible to influence, so there is a good argument for undue influence here.

  But if we change the facts just a bit, we can see how undue influence might work in other contexts as well. Say Johnny does consult with a lawyer (and, heck, why not a priest too?), and the subject matter is not Crash’s life, but something like success in an upcoming race. To make matters even more level, let’s say that instead of Johnny’s immortal soul, Mephisto only demands five years of service. We’ve got what looks like a level playing field, and there isn’t a great argument that there’s undue influence going on unless Mephisto uses some kind of supernatural power to somehow influence Johnny into taking the deal, which would obviously be undue influence. The same would go for any situation in which a telepath or empath plants a suggestion in the person’s mind. 21

  Unconscionability

  Moving on, unconscionability protects a party to a contract from terms that are “so grossly unreasonable as to be unenforceable because of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” 22 “The concept of unconscionability is reserved for the type of agreement so one-sided that it shocks the conscience such that no person in his or her senses and not under delusion would make it on the one hand, and no honest and fair person would accept it on the other.” 23

  Consigning one’s eternal soul to hell is as unconscionable as you can get, yet if we may literally play Devil’s advocate for a moment, we can imagine a counterargument. It would certainly be unconscionable if Mephisto demands Crash’s soul in exchange for saving Crash’s life, but asking for Johnny’s soul is different. Can an act of self-sacrifice, no matter how extreme, be unconscionable? Is there some threshold past which an invitation to altruism becomes extortion? And if you like the idea of twisting altruism into a legal defense for the Devil, then you may have a bright future as a defense lawyer.

  1. Notably, it is a contract for services (as opposed to goods), so it is governed by state common law rather than the Uniform Commercial Code’s Article 2. Since we don’t know what state Gotham is located in, we will refer to general common law principles.

  2. Lefkowitz v. Great Minn. Surplus Store, Inc., 251 Minn. 188 (1957).

  3. Note that most comic book “bounty hunters” (e.g. Deadpool, Lobo) are criminals who take jobs for hire. While they may talk about taking a contract, such agreements aren’t legally enforceable because they are contracts for the commission of a crime. See, e.g., McConnell v. Com. Pictures Corp., 7 N.Y.2d 465 (1960) (“It is the settled law of this State [and probably of every other State] that a party to an illegal contract cannot ask a court of law to help him carry out his illegal object, nor can such a person plead or prove in any court a case in which he, as a basis for his claim, must show forth his illegal purpose.”).

  4. Robert Bernstein et al., Superman Owes a Billion Dollars!, in SUPERMAN (VOL. 1) 148 (DC Comics October 1961).

  5. A peppercorn is the stereotypical example of nominal consideration, but as long as it does not appear that it is being included simply so that the contract will not fail for lack of consideration, it can still work. Courts usually do not examine the adequacy of consideration, i.e., whether the mutual promises are of similar objective worth, only the existence of consideration, i.e., whether something has, in fact, been promised by both parties.

  6. There are ways around this, though. The doctrine of promissory estoppel allows someone to enforce a promise to make a gift if he has reasonably relied on the promise and suffered some loss because of it. See, e.g., Grouse v. Group Health Plan, Inc., 306 N.W.2d 114 (Minn. 1981). This, however, is an equitable remedy based upon concepts of justice and fairness, not an enforcement of a contract as such.

  7. Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 464 (1982). Note, though, that the courts are pretty good at sniffing out “nominal consideration,” i.e., a situation in which the parties pretend that something is valuable when they’re really just trying to avoid some other aspect of the law, usually taxes but theoretically almost anything.

  8. See, e.g., Hamer v. Sidway, 124 N.Y. 538 (1891).

  9. See, e.g., Lloyd Corp. v. Henchar, Inc., 80 N.Y.2d 124, 127 (1992).

  10. See, e.g., Truck Rent-A-Ctr. v. Puritan, 41 N.Y.2d 420, 423–25 (1977).

  11. This situation was indirectly addressed by a federal court in United States ex rel. Gerald Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D. Pa. 1971). The court observed that it is doubtful that the court could assert personal jurisdiction over the defendant, and in any case, the plaintiff gave no instructions as to how service of process might be perfected.

  12. Express Indus. & Term. v. Dept. of Trans., 93 N.Y.2d 584, 589 (1999).

  13. Flores v. Lower East Side Serv., 4 N.Y.3d 363, 368 (2005).

  14. See, e.g., In re Baby Boy O, 733 N.Y.S.2d 768, 770 (App. Div. 2001).

  15. Long v. Fitzgerald, 659 N.Y.S.2d 544, 547 (App. Div. 1997) (“[A] contract may be voided for unilateral mistake of fact only where enforcement of the contract would be unconscionable, the mistake is material and was made despite the exercise of ordinary care.”). There’s a good argument to be made that just about any contract made with the Devil is going to be unconscionable, since it almost always involves someone’s immortal soul. There’s also good reason to think that the Devil probably won’t care, being the Devil and all.

  16. Application of David R., 420 N.Y.S.2d 675, 679 (Family Ct. New York Co. 1979) (“There is no contract where one party knew…that the other is laboring under a mistake.”).

  17. Cox v. Lehman Bros., Inc., 790 N.Y.S.2d 16, 17 (App. Div. 2005) (“A unilateral mistake can be the basis for rescission if failing to rescind would result in unjust enrichment of one party at the expense of the other and the parties can be returned to the status quo ante without prejudice.”).

  18. See, e.g., Dolloff v. Dolloff, 593 A.2d 1044, 1045 (Maine 1991).

  19. Dolloff, 593 A.2d at 1046.

  20. Id.

  21. Christopher Nolan’s recent hit movie Inception (2010) contains another kind of potential undue influence. Putting the idea to sign a contract into someone’s head, if such could be proven, would absolutely be grounds for voiding a contract.

  22. King v. Fox, 851 N.E.2d 1184, 1191 (N.Y. Ct. App. 2006).

  23. Kojovic v. Goldman, 823 N.Y.S.2d 35, 39 (App. Div.
2006) (quotations omitted).

  CHAPTER 7

  Business Law

  Most superheroes and superhero teams don’t operate as a business or formal legal organization, but there are some notable exceptions, such as the Avengers, which has had a charter since 1982. Could a superhero team ever qualify as a real business? 1 If so, which of the alphabet soup of business organizations (LLP, LLC, Inc., etc.) would be a good fit? 2 And what about the laws and regulations that affect businesses?

  The first page of the Avengers’ charter. Note section one, subsection B. We wonder if this was amended following the passage of the Superhuman Registration Act? Bob Harras et al., AVENGERS ANNIVERSARY MAGAZINE 1 (Marvel Comics November 1993).

  Business associations are significantly and arguably principally concerned with minimizing two things: taxation and personal liability. Superheroes aren’t generally in it for the money, so the tax implications of their activities aren’t really so important. But all superheroes, especially ones with significant assets, should be concerned with minimizing their personal liability. The fact that the superhero team members haven’t themselves thought about how their relationship works will not stop a court from deciding if one team member might be liable for the actions of another. So if, for example, Robin assaults someone, a plaintiff might sue Robin and Batman, under the theory that they’re partners, or that Robin is Batman’s employee. That seems to make a certain amount of sense, given their relationship. But what if the situation was reversed? What if Batman assaults someone, and the plaintiff sues both of them? Does that work? To figure it out, we have to take a look at the various kinds of business relationships and entities.