Saturday, October 21, 2006

Conflict of Performance; Prostitutes and the Unilateral Contract

In order for this post to be somewhat credible lets pretend Ohio just legalized prostitution, but has not passed any statutes regulating the industry.
Prostitutes before the Restatement of Contracts 2nd Edition would have a problem finding adequate relief for the Johns not paying them before the completion of performance.
Now the average opening line between the two parties is "If you suck my cock, I'll give you $50." or "I will give you $100 for sex." This is the basic unilateral contract. Performance of the act is the consideration in itself. The classic example as given by Contract Professors or any contract book for law school follows a similar pattern. "If you walk across the bridge I will give you $100." Only when the actor walks across the bridge will he get his money (obviously if someone is offered $100 to walk across a bridge, either the bridge is: 1. Not there. 2. Badly damaged and could fall in any moment. 3. The offeree is poor. 4. The offeror is so rich he doesn't know what to do with his money.).
Now prior to the Restatement of Contracts, notably section 45 of the 2nd edition. These unilateral contracts, or adhesion contracts (take it or leave it) would render the prostitutes helpless if near the end of the performing act the John would revoke his offer. Now you can argue that the offer said "Suck thy cock" or "Have sex with me"taken in its literal sense that would say that once it began that was the performance itself, but obviously the defendant would show industry custom in the prostitute industry where offers like that would be completed after the man orgasms or ejaculates. Needless to say this would leave the smart men very happy on their power of revocation while leaving the prostitute literally naked and helpless.
Now Section 45 of the Restatement of Contracts 2nd Edition came to the rescue of the hopeless hooker. Section 45 states:
Option Contract Created by Part Performance or Tender
1. Where an offer invites an offeree to accept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree tenders or begins the invited performance or tender a beginning of it
2. The offeror's duty of performance under any option contract so created is conditional on completion or tender of the invited performance is accordance with the terms of the offer.
Part 1 of section 45 states that if the offeree begins performance an option contract is created. Option contracts are in a sense contracts for which the offeror can not revoke their offer for a specific time period.
For more information of this please visit comment D.
So applying Section 45 the prostitute would now have an avenue of recovery now.
Before section 45 the offeror could revoke at anytime before performance was completed. Now prostitutes could say "No you don't sweety! I gots Section 45 Part 1 of the Restatement(s) of Contracts Second Edition on my side now fucker!" This would render the the offeror unable to revoke his offer.
Clearly applying this rule to the area of prostitution was not want the founders of the Restatement of Contracts had in mind. Considering Professor Williston's popularity in the law forum of contracts this probably meant he had to travel a lot to different law schools to speak on behalf of his position on the elements of contract formation. Needless to say this travel meant being away from his family and his wife. People on the road that long probably get a bit lonely, and seek companionship. What kind of companionship. I do not know, but I figured a smart man like Williston would find loopholes to get more bang for his buck (no pun intended). Now other areas of contract law do apply to the area of prostitution but because its 2 am, I'm tired and going to bed.

1 Comments:

At 2:38 PM, Blogger Jordan Grant said...

But in the opening line of the entry. I stated that Ohio just legalized it, but has yet to pass any laws regulating it. In this situation, how would section 45 apply.

 

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