as lessig pointed out, quite a bit comes from whether we consider one of the parties the good or the bad guys. (did he point that out or did i just hear it?)--

in the Cheshire case, we can see both parties as bad guys--a contractual double whammy if there ever was one, which is the reason why such alert repeat players, if they'd like to play hardball, should put their ideas in writing.

I believe Cheshire entered into the deal not for the 5,000 but for the option to build the gas pump. Options, ohwever, do not come for free, and we may consider Cheshire to have valued it quite a bit to be willing to promise the land for 5,000. at the same time, the option price was tied to the likelihood that it would go through. had it just been that the risk taken proved barren of itself, then they should have sucked it up. but consider that the other bad guys, Springfield, decided to enter into this agreement knowing that, by giving the option, they would get a much lower default price for the land. We know for a fact that 5,000 was lower than the going rate for that kinf of land. posit they made the option not work out because what they wanted all along was the land for a cheaper than market price. So they tried to screw Cheshire, and Cheshire, rightly enough in the country of freedom and what not, screwed them back. I think it preposterous to hold that there was a modification--there was no modification if there were two possible outcomes, one of the two did not go through, as was contemplated by the very idea that they had a 5,000 default option, so they should just have enforced that. Otherwise, we are going back to the case of Gruen Industries v. Biller, in which the court held, as it should here following that standpoint, you should not be able to get your wife drunk and keep the barrel full, as they say back in the socialist world, and which is exactly what Cheshire tried to do: lure a party into a contract with two options, and when the option they wanted did not work out, bail out on the other option. That is, they used the option when it was convenient to them, and discarded it when they unbderstood that was not what they had gone in for. So why was the upping enforced? Because, in my mind, the court decided that they were both playing hardball, and neither was innocent, and so they should pay whatever final contractual price there was: they both took the addtional risk by playing the way they did.

Now, I'd like to see if anyone agrees with the confusion i am trying tt create here, and if anyone can reconcile that line of thinking with the case of the fishermen. I would propose that part of the disagreement between the two decisions is that sailors are held up to higher standards of conduct than businessmen are, sort of like attorneys (cf. Mckenzie v. Maynard). So the act of salvage is ennobled by the decision in a way in which the business transaction is not.The same advantage taken by the parties in the two cases, however, is not so easily ruled off--think that the captain himself of the shored vessel told them they could get what they wanted, and then held back, much as in Cheshire. So...? A sailor's word is not as good as his day in court? I believe that considering a "social engineering perspective" on this may be moderately far fetched. How many cases are there of shored up vessels in which the captain of the vessel passing by will decide whether to assist based on what he knows of Post v. Jones? (acoustic separation taken way out there...)

thanks,

a.

-- Anonymous, October 13, 1998