I have a question about Cardozo's opinion in Wood v. Lucy. As I understand it, all Wood would have to do to enforce the unilateral contract is to undertake what was asked of him. To plug it in to the example, if someone crosses the Brooklyn Bridge in a unilateral contract for 10$, isn't the other party then obligated to pay? So in this case, if Cardozo wanted to be more formalistic about it, wouldn't he only have had to say that once Wood went out and got a sale with Lucy's name, then Lucy was obligated to honor her share of the contract? That way he wouldn't have to rely on my abstract ideas like the exclusivity of the agreement. Let me know what you think.

-- Anonymous, September 26, 1998

Answers

I think what someone mentioned as the problem with that argument is that Lady D-G could argue that the agreement of employment is not a single unilateral contract but a series of them. In other words, it would be like, "I will give you $10 each time you cross the Brooklyn bridge this year."

Since unilateral contracts can be withdrawn before performance by the other party, the promisor in the bridge example could, after paying $100 to the promisee for 10 crossings, withdraw the offer of $10 dollars for each _future_ crossing during the year. Similarly, Lady D-G would argue that she is only withdrawing contracts which haven't been made binding by performance--contracts concerning the endorsements Wood _could_ have (but has not yet) placed for her for the rest of the year.

I think this is where the idea of exclusivity mentioned in the agreement becomes necessary, since the above interpretation of the agreement of employment would make exclusivity meaningless.

I also have a question on something about the Wood case we mentioned in class. If Wood really had done nothing (or only very little) to advance Lady D-G's interests, it would appear that Lady D-G would not be able to sue him as the contract was unilateral. (Cardozo I think never mentions exactly what Wood _had_ done for Lady D-G.) This doesn't seem really fair, and I was wondering if anyone has any ideas about how the distribution of "burden of proof" in a suit like this could be made more even.

Sorry this is so long, Tawen

-- Anonymous, September 26, 1998

In answer to Tawen's question about burden of proof, I think that if Lady D-G was worried about whether or not Wood would make her any money, she never should have signed an exclusivity deal in the first place. In that sense, it's all up to her before she signs the contract to make sure it's a good deal for her. Plus, if after a year it proved fruitless from her standpoint, she could then back out. I think this may be part of the reason why (in addition to his bias against ladies of style) the judge was on Wood's side...

-- Anonymous, September 27, 1998

More on Wood

Hi,

Sorry to bring up this case again.... I guess I am still confused and still think the case seems unfair. 2 questions: 1) If we argue that Lady D-G shouldn't have signed the contract if it wouldn't be profitable for her, how can we distinguish her case from all the other cases where contracts were found unenforceable b/c of lack of consideration? (Rebecca, I think you are right that there is a difference in Lady D-G's case, maybe because of the exclusivity clause, but I still can't quite figure out the difference....)

2) If we argue that the harm to Lady D-G wouldn't be all that great b/c she can back out after a year, can't we argue the same for Wood? (Actually, he might even be better off b/c he can probably back out as soon as Lady D-G starts giving endorsement without going through him, so he doesn't even have to wait a year.)

I guess I feel that in some weird way Cardozo's opinion made this contract both unilateral and bilateral, depending on whose perspective is used. Can anyone clarify?

Tawen

-- Anonymous, September 30, 1998