Contracts can happen even when you don't expect them

Marcel Strigberger.
I do not like entering into contracts. If I ever have to sign a contract, the prospect likely checks most of the boxes for a recipe of a potential diagnosis of PTSD. Mention the words “offer” and “acceptance” and I quiver. I would say I have had these sentiments since I was about 10 years old. Why you ask?
I was always an avid classical fiction reader, enjoying an iconic works, such as Charles Dickens’ Oliver Twist or A Tale of Two Cities as well as a good Superman comic book. And this is how my contract trauma was forged. I talk about the book club scam.
You would see ads for these outfits in, you guessed it, the comic books. The ad would read something like, “For 99 cents, we’ll send you three classic books of your choice from this list.” This sounded good to me.
I actually bit into this one investing about a week’s allowance to nurture my reading habits. For my 99 cents they sent me three quintessentials, namely The Count of Monte Cristo, Les Misérables and a book of Aesop’s fables, which included a treasury of tales about animals, all ending with a strong inspirational moral message. The anticipated package arrived and I recall that the pages were of ridiculously poor quality. The paper must have been made from tossed-out desk ink blotters.
But I enjoyed reading the books and went on with life. But what I did not realize was that I was now on the hook to buy a number of books periodically at exorbitant prices until whichever comes first—my 95th birthday or the arrival of the Messiah.
I lived in Montreal, and I soon started getting threatening letters from this company in Toronto, our rival city, unaffectionately referred to as “Hogtown.”
One of them read something like, “You have signed a contract, and you are bound to buy more books. If you don’t there will be legal consequences.” The letterhead sported a graphic of an angry-looking judge slamming a gavel. This rattled me big time as I recalled that Edmond Dantès, aka the Count of Monte Cristo, spent 14 years imprisoned at the infamous Château d’If off the coast of Marseille.
For that matter, Jean Valjean from Les Misérables got sent to the slammer for about 20 years for stealing a loaf of bread.
I took these threats somewhat seriously. This was Quebec, where French law prevailed. Nor would I have felt better had I lived in Toronto and been threatened with the British equivalent of being sentenced to serve time in a debtor’s prison. The stress was too much!
I was beside myself. I couldn’t really show these letters to my parents, as in addition to not wanting to alarm them, they did not read English.
Eventually I discussed the matter with my next-door neighbor, who was a teacher. She was helpful. She sent these Toronto goons a letter telling them I was a 10-year-old kid and penniless, and asking them to drop the matter, pointing out that after all here was a reader who numbered amongst his heroes the boy who cried wolf.
The Hogtown hooligans eventually backed off, demanding that we return the three books by post. With my good neighbor’s help, we went to the post office and shipped them back. That was a load off my shoulders.
I decided there and then in future I would think thrice before ever affixing my John Henry to a document.
Actually, historically many jurisdictions protected certain classes of people from the onuses of signing contracts. These classes included “infants, married women and lunatics.” History wasn’t all bad. I felt like I was in good company.
But in law school we learned that contracts can happen even when you don’t expect them. I think of that iconic Carlill v. Carbolic Smoke Ball case back in England in 1893, where the smoke ball company offered 100 pounds to anyone who used their product and still contracted the flu. Lili Carlill used the smokeball and, of course, she contracted the flu. The company refused to pay up claiming there was no enforceable contract and that the ad was mere “puffery.” She sued Smokeball and the court found for the plaintiff, noting that the defendant’s advertisement did constitute an enforceable contract and was not mere “puffery” (I guess that’s what the British called it in 1893).
And when I think about contracts, I note how nasty people can get aggressive when they want someone to sign one. I recall that scene in The Godfather where Michael Coreleone, in discussing a potential contracting party, says something like, “My father made him an offer he couldn’t refuse. … My father assured him that either his brains—or his signature—would be on the contract.” I thought I got off easily with that book club.
I don’t even accept freebies if it means getting into legal obligations. For example I see many Starbucks outlets often offer customers free Wi-Fi access. All you have to do is agree to the terms and conditions. I don’t even want to check out these terms and conditions for fear of falling into servitude. I visualize some lawyer who after graduating from Attila the Hun Law School joins a big law firm and gets assigned to draft some Draconian clauses.
They probably read something like this:
Privacy?
• Ha, ha, ha! We have the right to share all your user information with necessary third parties. Necessary third parties include Starbucks, Google and Amazon. Also, your personal information may find itself on Mark Zuckerberg’s Facebook page. If you see it there, you hereby agree to like it.
Improper Use of Wi-Fi
• You agree not to use your device for any improper purposes including spam, copyright infringement or defamatory postings.
• You may not transmit viruses, worms, or Trojan horses. You will be required to clean up any mess made by any such horses.
Damages
• You use this service at your own risk. We are not responsible for damages, injuries or traumas, however caused, other than those governed by the 2013 Sumatran Java Convention. In such case, damages will be limited to one venti cappuccino (275 calories). For strawberry or vanilla extract please add 50 cents.
As the old adage says, “There is no such thing as a free latte.” But are there many folks who do not click “I agree”? I doubt it.
Being a lawyer and shunning contracts might be an oxymoron. Maybe it is, maybe not. But there is certainly rhyme and reason to my reluctance. And at this stage the law will no longer protect me as an infant, a married woman or—perish the thought—a lunatic.
Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue his humor writing and speaking passions. His latest book is First, Let’s Kill the Lawyer Jokes: An Attorney’s Irreverent Serious Look at the Legal Universe. Visit MarcelsHumour.com, and follow him at @MarcelsHumour on X, formerly known as Twitter.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.


