posted September 9, 1998

PAGE ONE: MICHELLE GERHARDT: SUMMER 1998: MIDSUMMER NIGHT'S DREAM

There are several situations in the play where one could reasonably argue that a contract had been formed. In examining one potential contract, Titania, Queen of the Fairies had "in her possession," a small boy from India. Oberon, King of the Fairies, wanted this child as a chief page for his band of fairies. In order to have a valid, enforceable contract, six elements need to be satisfied. First, there has to be an agreement between the parties. There appears to have been an agreement when Titania promised to hand over the boy to Oberon in exchange for Oberon’s promise to remove the magic spell previously placed on Titania by Oberon. The spell caused Titania to fall in love with Nick Bottom, a mortal man with a head of an ass.

Secondly, there appears to have been sufficient consideration given to form a bilateral contract – "a promise for a promise." This constitutes the bargained-for exchange.

Thirdly, one could argue that both parties had the capacity to enter into the agreement. They both had the ability to grasp the consequences of their actions. Although Titania’s judgement regarding Nick Bottom was impaired, she was still capable of understanding the nature and consequences of her promise.

However, did both parties have reality of assent? It would appear not. Reality of assent is the fourth element of a contract. By offering to remove the spell that he originally placed on her, Oberon in effect blackmailed Titania into giving up the Indian boy. Oberon’s act may have constituted duress, or at the very least, undue influence upon Titania. Oberon certainly took advantage of Titania’s mental and emotional state (she was enamoured with an ass-headed man) to unduly persuade her to enter into the contract.

In considering the legality of the subject matter (the boy), one has to question the substance of the exchange. This addresses the fifth element of a contract. In order to satisfy reasonable expectations of current law and Athenian law, one will assume that the boy was not traded as a slave or a "good," but merely the rights of guardianship were passed from Titania to Oberon. As Oberon and Titania are the king and queen of fairyland, one can assume that they each have authority to transfer guardianship rights from one to the other.

The sixth element of a valid contract is form. The Statute of Frauds requires material terms of a contract to be in writing for, among other things, the sale of "goods" valued at $500 or more. However, this requirement does not apply. The right of guardianship was transferred, not "title" to the boy. Thus, the boy is not being treated as a good.

Because the agreement lacked reality of assent, one concludes there is no contract. Titania’s complaint is valid in an Athenian court of law because of the subject matter (the boy). The court has in rem jurisdiction to hear her case by the fact that it involves the guardianship of a human person. However, due to the unusual nature of the circumstances, there is no adequate remedy of law. Thus, Titania is entitled to an equitable remedy. The courts would most likely order a rescission of the contract and require Oberon to make restitution to Titania. An action of rescission is available when there has been a material breach of contract such as fraud, duress, undue influence or mistake. The contract would be rescinded and Titania would be restored to the same position she was in before entering into the contract. Thus, Oberon would be ordered to give the boy back to Titania.

PAGE TWO: MICHELLE GERHARDT: SUMMER 1998: MIDSUMMER NIGHT'S DREAM

Throughout the play, there are numerous examples of torts, both intentional and unintentional (negligent). The tort selected for this analysis is an intentional tort and is closely intertwined with the activities discussed on the previous page.

Oberon, with the aid of his loyal subject, Puck, obtained a flower containing magical juices, that when dropped into the eyes of someone sleeping, makes that person fall in love with the first living creature seen upon waking. Oberon concocted a plan to use the flower’s magical powers by placing it into Titania’s eyes. When she awoke and fell in love with the first creature she saw, he would offer to reverse the spell in exchange for the Indian boy.

Oberon deliberately followed through with his scheme. In addition, while administering the potion, he added insult to injury by reciting a spell that would cause Titania to awaken when "some vile thing is near." Unknown to Oberon, Puck has transformed the head of the mortal Nick Bottom, to that of an ass. As one would guess, when Titania awakened, Bottom was the first creature she saw and hence, fell in love with him. When Puck told of Titania’s misfortune, Oberon was very pleased. His plans had worked better than he anticipated.

Oberon’s act constitutes the tort of intentional infliction of emotional distress. He had a duty of care to Titania as a reasonable person does to others. He had an obligation to her not to cause any unreasonable harm or risk of harm. He breached that duty of care by putting the juices from the magical flower in her eyes while she was sleeping, so that when she awoke and saw something vile, she would fall in love with it.

By his actions, Oberon caused injury to Titania. His actions were "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." One could conclude that Titania suffered tremendous mental distress. She experienced shame, humiliation, embarrassment, and worry knowing that she had professed her love to a mortal man with an ass’s head and maintained relations with him.

Alternatively, one could view Oberon’s act as an intentional tort of battery. Oberon engaged in unauthorized, harmful, physical contact with Titania while she was sleeping. Titania almost certainly suffered physical injury by maintaining close proximity to the ass-headed man. Beasts such as asses are likely to carry a variety of infectious diseases and foreign bodies such as tics, lice and other vermin. In addition, the magical flower may have caused irreparable damage to Titania’s eyes, potentially affecting her vision.

It can also be found that Oberon’s actions were the proximate cause of Titania’s injuries. They were reasonably foreseeable. In fact, Oberon had hoped Titania would fall in love with a beast. Based on the facts, there appear to be no defenses to Oberon’s intentional tort (such as Titania’s consent). Titania was an innocent victim and not in control of her actions regarding her infatuation with Nick Bottom.

To establish "substantial minimal contacts" with the Athenian jurisdiction, one cites the following observations: the tort occurred on Athenian soil while Titania was lying on solid ground (proving that the act did not occur in a fairyland dimension); the fact that Titania and Oberon planned to dance in the palace to bless Theseus’ marriage implies a reverence and loyalty to an Athenian king (which would indicate a conformity and voluntary submission to Athenian law).

The courts would likely order Oberon to pay monetary damages to Titania. Actual damages of some amount would be awarded to compensate Titania for her personal injury, pain and suffering, and emotional distress.