Saturday, March 19, 2005

The Statute of Frauds and Terri Schiavo

The law allegedly has a strong bias in favor of truth, reasonableness, justice, and avoidance of moral hazards. One of the best illustrations of this is a universal US law that is enshrined in both the Common Law and by the Uniform Commercial Code governing all US sales transactions.

As law professors explain, the real meaning of the term is "the statute for the prevention of frauds". The idea is that there are certain kinds of dealings that inherently offer the temptation to cheat. Hence, to eliminate both the temptation, and the possibility, of either party being less than truthful about oral communications alleged to have occurred between the contracting parties, certain kinds of contracts must be in writing, and signed by the person you are trying to enforce the agreement against. The exceptions are few, and only are allowed if they provide very strong circumstantial support for the claims.

Now, this principle of law applies to agreements of two types: contracts to buy things "of great value", and situations where the temptation to, er, liberally interpret to your benefit (that is, "lie") is "easily imagined". For example, if you want to buy a piece of real property, land, the seller must give you a signed piece of paper clearly describing the specific piece of land, the price she is willing to sell it to you for, and then sign the paper. Or, if there is an agreement that I will cover the bad debts of my worthless brother-in-law, that is, act as guarantor for his purchase of a used Geo Metro on his salary flipping hamburgers down at the local bowling alley, I have to provide the seller of the car a signed piece of paper indicating that when, not if, Lazy Larry defaults on the loan, I will write a check. Then another check, then another…..

The same principle is found outside of contracts, in areas where "strict liability" applies; if a man erotically amuses himself with a girl of fourteen, he is guilty of statutory rape no matter how old he thought she was. It is too easy to play he-said-she-said with the truth, and public policy should discourage opportunities for older men to take advantage of young women.

To illustrate what the law considers to be a contract of significant "value" the Statute of Frauds requirement for transfer of goods kicks in at a sales price of $500. If you are going to write a contract to buy anything worth more than $500, you need to have the deal in writing and signed by the other person. Period.

Now, let’s consider Terri Schiavo, the woman in Florida whose brain injury has led to the battle between her husband and parents over starving her to death by removing her feeding tube so her husband, Michael, can marry his live-in girlfriend and "legitimize" their two children. She is physically healthy, not on any kind of respiratory or circulatory support systems. The question is entirely whether the nursing home should stop giving her meals and water so she can starve to death and free old Michael up so he won’t have to fuss with a divorce. Since her parents are eager to assume responsibility for her care, Michael must have come from a tradition where divorce is, literally, worse than death. Or something like that. Nice to know that he has such a strong commitment to marriage.

The Florida judge on the case has apparently adopted this as his personal "right to die" crusade. He refuses to consider transferring custody of Terri to her parents, who promise to take care of her and provide various kinds of physical and occupational therapy that might improve her condition. Their petition is opposed by Michael, who swears, honest, that Terri had told him when she was about 27 years old, conveniently not long before her highly unusual and unforeseeable injury, that in the event that she was ever in such a "vegetative state", she wanted him to starve her to death.

Michael Schiavo was inspired to remember this "kill me!" conversation by warm thoughts of Terri immediately after winning a lawsuit that provided $1.7 million, much of designated to provide the care and therapy to help her condition improve. Of course, since she had really wanted to die anyway, he would just use the money in her memory after she was gone, presumably thinking of her with every bite of gourmet food and over every mile traveled in the new car.

So now we see the comparison of what is too morally risky to leave to one person’s unsubstantiated assertion. If you are buying a used Geo for $600, you need a written contract signed by the car dealer. If the object is the life of your wife, you don’t need anything in writing from her- you can just suddenly remember that she had said once, by strange coincidence not long before having a tragic accident, that she wanted you to kill her if she ever had just such an accident. And the judge, having just finished ruling that a writing is needed in a dispute regarding sale of a used drum set, will pat you on the head and say that he will do everything he can to help you starve her to death. Even though her parents have asked you to simply divorce her, give them custody to care for her, and go on with your own life.

Ironically, if Terri and Michael had made a contract to get married, in exchange for Terri giving Michael title to that $1.7 million, the deal would have had to be in writing under the Statute of Frauds. The idea is that it is easily imagined that one might be tempted to stretch the truth a little bit with that kind of incentive, so the moral hazard is avoided altogether by simply requiring written proof.

We don’t know what Terri said to Michael about the possibility of death in this kind of circumstance; I know that my wife and I have been married for 30 years and never talked about that, nor do I know anyone else who set up a plan at an age under thirty when most young people feel immortal. I do know that if Michael had tried to force someone to sell him a Geo for $600 he would have been tossed out of court without written proof, and a $1.7 million incentive to enforce the unwitnessed oral terms would have only reinforced a judge’s hunch that the evidence offered might be a bit tainted.

We are doing a fine job protecting the rights of those owners of $600 Geos- on the off chance that they didn’t really want to sell.

(this post was edited on 3/21/05 to improve the illustrative examples and correct name spelling error)

6 Comments:

Blogger Sue Bob said...

Good analogy!

I'll be back to read more.

March 21, 2005 at 10:04 AM  
Blogger LASunsett said...

Any small claims court would require a receipt. Hearsay is not allowed. But the rogue state of Florida seems to allow hearsay over the absence of a written living will, in the matter of life or death.

March 22, 2005 at 5:53 AM  
Blogger Hatcher said...

A wonderful descent into innuendo. Michael Moore had better keep an eye on his back.

Might I respectfully suggest that you bother to read the full court decision on each of the issues you allege? You can find them at Abstract Appeal, a weblog run by a Florida attorney who takes no side in this case. It'll take you a good five or six hours to read what has actually happened in this case.

Florida has state laws that prescribe the actions that can and cannot legally be taken in cases such as this. Every step of those laws has been followed.

You clearly do not like that law. Or, at least, the consequences of that law. You're perfectly welcomed to carp at that, but if you wish to change it, then you'd best move to Florida where you can vote to effect a change.

As a Floridian, I do not appreciate, nor respect, your disregard for my rights, or the rights of my state legislature, to make competent law.

March 22, 2005 at 11:43 AM  
Blogger Kurmudge said...

Well, Hatcher, I appreciate your view, as well as your obvious courage in identifying your contact information so that your non-comment in response to points never made could be responded to directly. Hit and run is a favored tactic of the Michael Moores of the world and their surrogates such as yourself.

I am not commenting on the facts of the case- as is obvious to anyone who reqads the post without an agenda. Many others have done so in great detail- and it is clear that the judge follwed all the check marks while apparently consciously neglecting his fundamental duty as a jurist- that is, to appoint a guardian ad litem where there is a possibility of the appearance of a conflict of interest in a case. This one is so obvious that it is clear to everyone except you.

Nevertheless, the post does not deal with that point (which you don't deal with either, come to think of it, you don't deal with ANY point)- it merely points out the difference between the level of proof required for relatively nominal property actions, compared with the level needed for killing your wife, whether or not you think that you should have that right.

March 22, 2005 at 12:03 PM  
Blogger Quadraginta said...

I think you make good points. There are some additional considerations, however: first, is it not the case that, generally speaking, the Courts presume that decisions made within the family should be binding, regardless of the evidence that supports (or fails to support) them? That is, suppose the husband and the parents both *agreed* that Terri did not want to live like this (even without any documentary evidence at all) and decided to pull the tube. Is it not the case that the Court would presume that decision to be good, and not interfere? And do we really want to change that, to have judges second-guess family decisions?

Of course, that suggests the crux of the problem is what the Court does when families do NOT agree. In this, the situation is very like divorce and child custody cases when parents disagree about the best interests of their children.

Hence I agree with what I think you say, which is that the judge's primary failure is his failure to appoint a guardian ad litem -- routine in disputed child custody cases. If he had properly appointed a guardian, the latter could legally employ the husband's mere memory of conversations and other "flimsy" evidence of her wishes in coming to his decisions, yes?

This may not be very optimal, because it ultimately relies on the good judgment and dedication of the guardian. But there's no escaping the fact that there is no strictly logical solution to this problem that could be applied by a computer program. Sooner or later, a fallible mortal has to make a hard decision on incomplete evidence.

March 22, 2005 at 5:29 PM  
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