Promises Promises: Tongish vs. Thomas

Welcome back to your favorite contracts podcast. I'm Tess Wilkinson Ryan. I'm here with my colleague Dave Hoffman And today we're talking about what happens when you are let down by the purveyor of sunflower seeds and you do not get the promised delivery This is tongueish versus Thomas. Let's get started All right tongueish versus Thomas my favorite case So One of the things about using your case book is that I teach this case earlier in the semester than I would otherwise I think Because it's a pretty hard case And it's and I think the step that Students find it really disruptive to Learn about expectation damages and then to hear me say that Both remedies on offer our expectation damages Yes So by way of background I first learned about this case when I first started teaching contracts it was in a different book a long time ago and there were many years which I taught the case where I I've 100% did not understand it and I really didn't understand it. I didn't understand the actual math that follows the case sort of these problems that we've included The problem three four which is in the book Just destroyed me as a teacher for like I don't know maybe a decade and so The way I've thought about tongueish is to try to step back from it and try to think of it more as sort of a Theory case about what what we're doing when we're awarding Damages for contract law and I think you're right that the trick is to say both the Thing both what the plaintiff and the defendant want or believe the right measure is both of them could be Equally called expectation damages and the reason why the case I think is is super fun Slash Transformative for every single part of your life is that they both could be right like I think you if it depends on how you orient yourself in the world Both sides of the argument are super plausible and I use the case I mean my students will have seen by the time they hear this or maybe if we put this up earlier, they'll be That'd be pre-warned, you know, I see this case as like a pretty Key case early in the semester to sort of understand that You know law isn't about answers isn't about hard rules It's about sort of your you know how you use the facts and in sort of clever ways and how you think about policy and Tungish drives right through the course for me, but I agree that like it's hard. It's a hard early case To swallow especially if you think that the answer is what is the Special if you think that the project for law school is to get the answer Well, and that's particularly the case when you're dealing with with damning with damages where many of us will have just spent a day On literally the calculation How can you get the right number right then the and then it's like but actually you don't even know What goes what what the variables are right? Yeah, wait what we should say let's just say briefly what the case is in case Folks are listening to this and could use a refresher. It's about sunflower seeds and lights and love Okay, Tungish Is the Grower I Think of him as owning a small family farm for several generations in which he has sunflower seeds But also chickens are you doing like method acting in your class? Would I really have to get into the characters? I absolutely absolutely do think that part of the case is to try to really inhabit the land The place the sunlight on the on the on the waving I Imagine sort of like a field of sunflowers and he sort of walks out and he sort of brushes his hand on top of them and he says And then he breaches his contracts with both and Thomas Well, just to be clear the reason why is because he loves the sunflower seeds and he wants them to be held by the people who value them the most That is all stick. Yeah Tungish was Contracted to sell sunflower seeds for let's say a medium cheap price Medium cheap to Decaturcoup Co-op you say co-op I do Okay, some days I some days I say coupe some some years ago. Yeah, we need to choose and stick with one though Co-op does seem right unless you think that there's chickens and bulbs Exactly All right, so I let's just call it coupe because it's easier. Okay. Yeah, so he contracted to sell sunflower seeds to Decaturcoup Yeah, Decaturcoup contracted to sell those same seeds to bambino So It is unclear from my reading of the case where their coupe actually Is selling the same seeds to bambino or Coop has basically a supply contract to bambino that he's taking lots of farmer seeds Mixing them together. That's what coops do of course as we all know Um, they they they collect seeds from lots of gin farmers They standardize their weight and they standardize their quality and they serve a southernland of third parties I would be really surprised if what was going on in this case is that coupe is agreeing to sell a lot called Tungish's seeds. I think what he's selling is sunflower seeds And some flowers are a commodity obviously And so But but but you know, he has a deal that he's going to sell some amount of sunflower seeds to to bambino. That's true And what he is getting for that sale is just his purchase price Plus a little teeny markup. So the the language in the case is he's going to sell the price. It had paid the farmers Lest a 55 cent per hundred weight handling fee Which is what tells me he's basically collecting from lots of different farmers or coupe is collecting from lots of different farmers And for each farmer contract which are presumably all relatively standardize. He's getting this this middleman middle person fee And of course then bambino is of I believe selling onward to other people like Ultimate buyers of seeds farmers who are selling or feeding them to their Their livestock people who for whatever reason like to eat sunflower seeds and spit them Or baseball game people which used to happen Or in my particular case, I've spent the entire summer Using sunflower seeds to feed the birds to alleviate my own anxiety So the sunflower seeds are going to all kinds of ultimate purchasers None of whom know about this original contract of course and Tungish Knows but knows of the possibility of these ultimate sales, but doesn't know about them specifically Right surely knows. I mean right so everyone here being everyone here is familiar with the business model And with the idea of like this right a circle of life The whole thing is one stream of commerce. Yes, and everyone knows who they are in the stream of commerce. Yes so Tungish ends up in various Legal disputes. Well before he does of course, there's just an amazing thing that happens which is The price of sunflower seeds goes up. Yes, there is very exciting Short crop bad weather Price of sunflower seeds was double what Tungish and hoop agreed to Streamly valuable sunflower seeds and has another buyer Danny Thomas a well-known consumer of sunflower seeds indeed Danny Thomas is going to buy these sunflower seeds and With his purchase Increased Tungish's profit by like 50% And in the word we're a farmer who's always sort of living at the edge This was the sort of the score that you've been waiting for that was going to allow you to hold onto the family farmer. Yes, it's a big deal I'm not sure we know that about Tungish. Yeah, but I do we don't we don't at all you are But I like the yes the light means the case like so many things that comes back to Hamilton I think of Tom a Tungish is sort of like a real Jeffersonian ideal and you're obviously Vision that the case is going to be very Hamiltonian, you know very Not caring about the agrarian Roots of the case Yes, that is how I would describe our separate Manors in this in this world One of us being from actual country and the other one being from Horsham It doesn't matter where we're from And I think this is going to end up being a sort of a Hamiltonian rap song battle coming up here We do have a lot of time to read lyrics All right, so what Tungish wants is to only oh coupe wait before we get there. Let's just make sure that the procedure is sort of clear. So the Eventually Thomas hears about Coup, because it's a small community. And Thomas refuses to buy, essentially, or sort of wants to walk away from the deal. And Tungish sues Thomas to recover his honey pot of profits that he believes he's entitled to. Thomas says, I don't want any part of this, because you have a conversation with Coup. Why am I being sucked into that fight? Coup, in fact, intervenes into the action and says, that's my sunflower seeds. That's my money. Well, I don't know that your vision of Danny Thomas as a communitarian beacon is odd. Because the issue is not that he didn't get his seeds, right? The issue is he didn't pay for them. No? I mean, the seeds are money. He got the seeds. Are you suggesting that Danny Thomas tried to refuse the seeds? Danny Thomas, I think, understands that things have gone bad in the seed world and would like out of the problem. I look, I've always thought of this as Danny Thomas is just sort of walking around, offering money for sunflower seeds. It's sort of an innocent buyer in a way. And then when he finds out that he's not so innocent, he goes to the court. He's kind of a guide for some kind of a ham-handed restitutionary thing. And it was refused by Tungish. And we just don't know that much at that part just secret, not in the case. Yes. OK, this is exactly where method acting leads to. That's what we learned in the last 70 years. From, yeah, exactly. So Thomas, innocent interloper, is sued by Tungish. Yeah. Coup comes into the case and says, that's my money slash my seeds. And Thomas says, look, I want no part of your evil doing. I'm going to put the money into the court's hands and let you guys swear out of it. Thomas, he says, I'm going to give my straight to Coup. I'm going to-- he could have done that. He exits stage left because it would have been the end. But you know what? People are trying to comply with the law. He exits stage left. And all that's left is Coup and Tungish. And the funny thing is now the parties are reversed, where Coup is now the plaintiff, while Tungish should be in the original plaintiff. Coup becomes the real plaintiff interest. Tungish becomes the real defendant interest. The case is called Tungish versus Thomas. And of course, that's all wrong. And then we have basically a case ends up being just about damages. And the idea is, Tungish actually has to concede that he breached, which is itself interesting. Like, why can't Tungish say, I did the right thing. I was an American and Americans try to maximize return. And I was willing to pay off, you know, you dummies, Coup. But I didn't do anything wrong. But he can't say that. He has to admit he breached a contract. And then we have a question about damages. And so you were saying what you thought the party's various positions were? Well, the cost to him-- I mean, the cost to him of saying he's breached the contract is actually very low here. If he's right about what the damages are, he just gets to say, yeah, I breached so sorry. Here's your $455. It hurts to say you're sorry. But yes, he would have paid just the end of life. [LAUGHTER] I mean, the fact that these folks are litigating is suggests that we don't know what's going on. That is 100% true. Right? Like, if it is in fact the case that there is no world in which Coup was ever going to make more than $455. And tongue-ish could have gone to Coup and said, listen, I'll give you $500 to let me out of this. And if you refuse me, I'm going to go through with our dumb deal and you're only going to get $455. I have three ideas. One is that there must be a lot of other cases like this. And so Coup's not litigating for the difference between $45 and $55,000, but rather for all the other cases in which is trying to set a precedent, possible. I mean, who knows if that's true, but that's possible. Two is, maybe they have a whole other set of contracts that we don't know about, like Congestion Coup, in which they haven't yet come to the litigation form. But it's only 82,000 pounds of sunflower seeds. Maybe that's one-tenth of their total return. And then the third possibility, which is probably the most plausible, is that $455 in 1992 was real money. And tongue-ish doesn't want to give it up? Yeah. No, it's probably one. Yeah, it's something that doesn't seem right in the case. When's the UCC adopted? We know. Do you have any idea? Yes, yeah. So of course, it's originally promulgated in the early 1960s. It's adopted over, as a rolling basis in the states. Most of them are in the '60s, and some of them are in the '70s and early '80s. It's been enforced in Kansas for a quite open time by 1999. So there's no reason to think that this is a test case of uses. No, no, no. All right. So speaking of the UCC, this is the first time in my course where students really have to deal with the UCC. And I typically have us offer the perspective that the UCC is a problem-solving set of rules. Just clear guidance for people who would like some answers. Yep. Yeah. Yep. Pragmatic. I think of the UCC as pragmatic. The self-helpshove of contract law. Exactly. And one possibility here is that this case is trying to work out a place where the UCC has some drafting problems. You buy that? So I do also think that the UCC was intended to be a practical code for practical people. And that it was drafted by a set of authors, including Carl Wellen, who cared a lot about having the law match people's ordinary expectations. But I mean, even I think Lou Wellen would have admitted that the particular facts of cases could put pressure on rules. And the facts of this case don't really for me illustrate so much a drafting problem, but that the clear rules require you to know where you start, where you stand. So we have two really relatively clear rules. One of them is here's a very specific rule for what happens when the seller doesn't deliver. We get the market price minus the contract price at the time of delivery to make the buyer whole. So the buyer goes out there and covers. That's a clear rule. That's a specific clear rule. And then we have another specific-- that's the 713 rule. That's 2713, right? Yeah, 2713, 2713. And that's a specific and relatively, I think, clear rule. And then we have another specific and clear rule, 1106. Just a general measure of damages to put you in as a good position as you would have been in had the contract been performed. Which is just another way of saying, you get expectation damages. Yes. And they're both clear. Yes. There's nothing wrong with the way that Carl Wellen drafted those provisions. Carl Wellen drafted a model code that Kansas-- the Kent's legislature adopted the model code into Kansas' statutory law. And the thing that's amazing about the cases, you've got two totally clear rules that at least on one reading get you to different results. And how do we decide which rule applies? And it's an amazing fact about the law that we can have this pretty boring fact pattern get us so quickly to this fundamental question about what do we do when we have two clear rules that seem to point-- seem to point in orchestration. Yes. Right. So one way of thinking about what's going on here is that the two rules don't point to different things. Is that you can conceptualize Koop's position in two different ways. Depending on whether or not you take seriously Koop's position in the stream of commerce. Right. Exactly. Like, do you think of Koop as basically being someone who just runs the conveyor belt, where the seeds go on by, and he never has possession of them? Or do you think of Koop as having a minute in time, a key moment when he was going to be in possession of some super valuable sunflower seeds? I mean, that's exactly the way I think about the case. So if you think of the Koop, and I think you're right, as a conveyor belt person only. And then his real expectation-- the thing he was hoping to get out of the bargain-- really just was this middle person fee. And it seems under that way that there's just a difference between the middle person fee result and what 7/13 provides. And it seems unjust to give 7/13 damages. It seems like a windfall. the coup. Right. Because he's going to get literally 10 times. 10 times. And he's going to get 10 times the amount of money that he would have gotten if the clinic had been fulfilled. All unsympathetic planets, the middle person, you know, what is his social value? Like you might say his social value is he's collecting from all these different farmers. He's a coordinator. He's a coordinator. But, you know, the, I think that for many students, it would feel pretty unexpected to have as between the, you know, the distributed network of relatively small farmers and the middle person, you know, who is the sort of the step up on the, you know, the, the capitalistic chain to have the, the middle person be the person who we worry, we want to give the windfall to. That would seem like a bad outcome. But the other way to think about the case that, you know, which is just, you know, which is just, as you say, you just have to turn your brain in a different direction is to say, no, no, no, he took possession of the seeds. And maybe he didn't have to give them to Bambino. What do we know about that contract? Yeah. Maybe he didn't. Maybe he could have, you know, maybe he had the opportunity to go and find a new Bambino, Ram Bino or Lam Bino to whom he could have sold at a higher price. And, and the way I've, I've thought about this is like maybe the way to see the case is, you know, what Tongush did is he sold his hope to coupe his hope for the future. You know, his hope that the prices would rise. His hope that the crop would be, you know, come in and away that would have enabled him to sell at a higher price. But in return, he also got rid of his fear, the fear that prices would drop. And what, you know, what coupe said was, I will take the upside, but I will also ensure you against the downside. And if you think of the case, not as a conveyor belt, but rather as sort of a one off risk transfer, then it would be wrong to not give coupe the benefit of the windfall that he so richly deserves. He made the right bet. And he paid for it. And he paid for it. That's exactly right. The handling fee, you know, he's, he's, you know, he's, he's getting that this small fee, but he's, you know, he's aggregating risk. And, and you can see Cooper sort of a hero, you know, like so many people who are, you know, like insurance companies are heroes, you know, they take our risk from us and they share it among large swaths of society to allow us to live and go out and take small risks ourselves. So, do you, does this suggest to you that there's maybe like a, that's, that the way the case is written is, is actually like that we're missing pieces from this case that they're actually, the case asks us to assume too much. Like in some ways, the role of Bambino is too mysterious. So amazing, right? This is why the case is so great because the case allows us to play these games with our, in our heads, like, what is Bambino's real role? Do they have a contract that specifies tongueish? Does, does tongueish really know about Bambino, not just the possibility of Bambino, but their actual contract? Does Bambino know about, about tongueish? You know, and we have to sort of have these, these sort of conversations with ourselves that allow us to sort of say like, and why would those things matter? And the reason why the case is amazing is, of course, every contract is just within the stream of commerce. Every contract has this, this dual nature that it's between two people, but, or two institutions or three institutions, but also is within this whole set of commercial, a whole set of commercial exchanges that form a web and contract law sort of tries to carve out those exchanges because it's too complicated to think about. I mean, if you think about it, like, not only is there Bambino, but there's also someone who's you know, putting sunflower seeds into their bird feeders to keep the horror of modern life at bay. And if, if, if we think that tongueish should be responsible for those ultimate sales, you know, if tongueish doesn't deliver to Bambino and then Bambino doesn't deliver to wild birds unlimited and then wild birds unlimited doesn't deliver to me, should tongueish have to eat the sadness that I feel? Yes, it can't be. Right, but so the reason that Bambino is mysterious here is because it is both true that the court takes very seriously the contract between Cooper and Bambino. And yet, if that contract were so serious, we would think Bambino would be, would have, like, intervened. What is so easy? If he were suing, the case becomes easy, so easy, then Cooper is liable to Bambino, tongueish is liable to Cooper for the market price. Not our price problem solved. Super. The fact that he's so important, yes, he, he apparently wandered off is, is a real, it makes like a complex. So you should like this. It's like a Victorian novel where there's like us off, off stage, an uncle who either is or is not going to be like the giver of the inheritance or like the, you know, Mr. Darcy, that's who Cooper is and this, that's who Bambino is and not sure you've read that book recently, but what I hear what you're saying about the key character is off screen. Yes, the apothecary, as it were in Romeo and Juliet, yeah, no. That's one of my favorite. Well, this is an idea that there's apothecary, like trying to help, but actually is like, is actually like the, the, the coordinator of the demise. My experience, not of, of Shakespeare, although I appreciate you trying to class up this, this recording, but rather of Jane Austen is that there's always someone who's like a little bit mysterious, who's a little bit on screen, a little bit off screen from whom we're supposed to like the drives the plot. And Bambino has this very, I mean, you're totally right. If Bambino had sued Cooper, the case feels so easy because then you understand the nature of Cooper's harm and it's very easy to understand that actually one, one, one, six, and two, seven, thirteen get you to the same answer. Yes. But only because Cooper has this, you know, not quite clear role. I'm sorry. Bambino has this not quite clear role. The case is impossible to answer on its own with the facts that we have in front of us. So you have to make them up. And then you have to say to yourself, like actually, both answers are plausibly true. And all that really matters then is like, what's the story you want to tell yourself about contract law and about the relationship of contract law to this thing called contracting? If you start to think that Bambino wandering off is actually just a stroke of luck for Cooper, then it's also a stroke of luck for tongue-ish. And then it starts to feel less bad to think about Cooper's windfall. You're like tongue-ish. You are always going to be on the line. You are on the line. It's actually only by, in so far as we believe you understand really well what your position in the stream of commerce is. These people are your friends. Or these people are you, you're working with them repeatedly. You exactly know the web of contracts here. You 100% know you were always going to be that that Cooper was liable to Bambino. I mean, but you can see why method acting of making tongue-ish, a poor naive farmer really helps to push back against your hypothesis. But yes, I don't think not. I don't, I think that there's no world in, I don't think there's any method world in which there's naivety. You're growing 116.8 acres of sunflower seeds. That's not that many acres. That's like, it's a lot of acres of some, that's a huge operation. You've poured tons of money into that operation. That's a really big deal. There's not, this is not someone who's like, I'm going to sell my, you know, used magic cards online. So just to be clear, he was going to make $15,000 for his hundred and some acres of sunflower seeds. That's a, as you have pointed out, that's among other things he was going to make. Hang on. I'm going to find out what $15,000 is in from 1992 today. I'm going to guess 47. 1992, no, 1989, 1989, 1989, yeah, 1989. No. How much? 31,000. Wait, $31,000 is a year. That's a household income. Exactly. Not like a household income that anyone feels like he's a super sophisticated player that understands every step in the stream of commerce. I don't think, I just, you know, the question here has to, for me, have to do with sort of whether you're a repeat player. Ah. And I think that this person, that the tongue uses a repeat player, definitely a repeat player. If I thought this was his first time onto the market, if I thought this was a, for a government situation where he's like, I'm going to get into sunflower seeds. This is my first go. So just to make sure I understand your perspective, you think that if he is, in fact, a multiple generation family farmer, he should be more likely to lose, well, as if he's a gentleman farmer who's just buying it from New York City for the day, he should definitely win. No, I just mean like he sold sunflower seeds before. Right. This is his first time. He decided to like buy an alpaca farm and have sunflower seeds because he was bored. And all of a sudden he gets to win under your theory of the case. Oh, God. This case is so amazing. It has everything. It has. And so then what about the fact that there's like bed faith breach that somehow one of the. Yeah, there's bad faith breach. No, I don't like bad faith breach. They say bad faith breach, but I'm not saying bad faith breach. Why don't we call it willful breach? Why don't we call it willful, not no good. But I think we should not say bad faith in fact. I think I'm telling everyone to listen to this to not talk about bad faith breach What is bad faith? What is what what is willful? You can't just stumble around on purpose on purpose bad faith means you're on purpose doing Something you're claiming not to be doing That's what bad faith is bad faith is trying to be greedy in the courts view no bad faith is if you go into the contract Claiming you're gonna do stuff that you know. You're not gonna do but but I mean from that faith implicates lying Right, but from the courts perspective they're I mean the other reason why the case is is funky is because the court seems to turn on like a Moral judgment about what Tangish was up to or they seem like they're gun-ealing them. They don't yeah, right, right? So the court so okay, so the so one weird thing about this case the the writing of the case is I think it's pretty weird But one of the weird things is the court replicates multi-pages multiple pages of the lower case course decision Yeah, and it and it's grappling Sort of with this precedent, but it's not even a precedent. It's a precedent from a different a different jurisdiction. Yes, right, right, right, super weird. Yes I take it to suggest that this is a Sympath to suggest that the that the the other case is allied canners versus a victor right this ninth circuit case, right? Yes Yeah, I think it's a californ and all that gets a it's from california. You're right not my circuit I think it's nice. I think it's from a state can state a state case from california. Okay, okay And that is and it's so it's grappling with this very sympathetic precedent Mm-hmm, right and where the sympathetic precedent is Here's what happened to this poor farmer. Yeah, we're floods and Floods mean that when you grow grapes you can't dry them into reasons this cannot possibly be what I'm saying There's no way that it would work to It's it damaged the raisin crop so there was too much water made the grapes not grow and then they couldn't Couldn't dry them into reasons correct grapes are what makes raisins. I have apparently You learn all kinds of things in law school. You do it's yes, but Okay, but so that case feels really Sympathetic because that great because that farmer had whatever some let's say a hundred acres of grapes that didn't grow had promised to sell them and Then the only way they could have possibly gotten more grapes to sell to the to victor packing or whichever it was I can't wait whatever whichever though, however much the the only way they could have gotten The those raisins to sell on the market to replace the raisins they didn't grow would have been to pay like a hundred times Yeah, what they were contractors Right the seller was avoiding a loss as opposed to trying to seize a gain or you know Is facing a loss as opposed to a gain and so the court says? I mean there's a lot of differences. I mean the other one of course is that the seller in allied Know was about this resale contract well here what they say is Tongues knew they eventually went to bambi, you know, he might not have known the details about the sale itself which is on 288 in the book And the court basically says you know, it's not so bad and we're going to give only actual damages and the question is What do we do with that precedent yes? And there's two interesting things what they do with it one of them is they cite some larvae article by our friend of ours Bob Scott Who calls the result? Unfortunate because it doesn't comply with economic efficiency and I don't know that I a hundred percent understand that argument And then they say well, it's a minority view anyway, and the majority view is you know, you get More efficient market if you give the bigger the bigger number and that is funny Just funny ha ha but funny Let's just quickly just What Bob is arguing there I take it and the reason that this court doesn't find that case to be extraordinarily persuasive Because the case does seem super persuasive on its face, right? This is the I take it that the reason the court is not thinking wait. We have to be really careful about people in Victor's position The seller's position. Yeah is because they're thinking about either insurance Or some kind of ex ante contract provision that was solve this problem, right? They're thinking like wait guys You have to put this in there, right maybe there maybe they're even thinking about some kind of impossibility Maybe that's but maybe not right until what they're but so The reason to feel less bad about the possibility that farmers would find themselves in that in that devastating position Is the idea that you can contract around it? With some amount of and probably pretty cheaply contract around it just to make sure because this is going a little bit fast So Bob Scott is a nice person and he agrees that the farmers in allied position are in a bad position Yeah, and he says yeah, they're in a bad position But still the result is wrong. Why is the result wrong not because he wants contract law to punish poor farmers who are stuck because of a flood But because he says look smart farmers knowing about the rule which I'm proposing which is the opposite of the allied rule But the rule that Congress comes up with you owe the full you owe the full damages Smart farmers would contract around that rule that would write something in their contracts that says if first or whatever reason if because of some Flood I can't I can't provide here's the limitation on the damages that I owe Bob Scott believes as you believe that farmers are repeat players and will understand the rules And Bob Scott says therefore we shouldn't care about like what feels fair When we think about what damages are we shouldn't care about what feels fair to the parties in front of us We should be trying to create a rule that like gets the right incentives across everyone in society and the right incentives across everyone in society is the big number Yeah, I take it. Yeah What and why is that? Why is it that the that the one one of six damages are the right result for society as a whole? I Got to be honest. I don't think that it matters for society as a whole who gets the money here I certainly but with that said I think it's the only I actually think it's the only sensible Consistent result given both what we've said about the possibility that Ambino would have sued and the fact that coupe could have covered Right, so I yeah, so I think what Bob saying which I agree with you is the one one of six damages have one Everyone can change the rule they if they want to in their contract But one one of six damages have one really strong advantage that 713 damages don't and the advantage they have is that Everyone knows that suing is a dumb solution that like we're gonna There's gonna be a big number. Yeah, you should you should think about that big number and you should Especially in the cases like this if you've laid off the market risk you should not sort of Turn your Contracts, you should be trying to stick with the deals you have It's a it's a rule that reduces litigation reduces like breach and reduces litigation And that's good because breach and litigation are expensive and Bob Scott basically is like let's have a rule that sort of Encourages people to stick with the contracts that they have and enforces the contracts they write and that's a better Solution for society then a rule that encourages breach and then tries to like Make the damages perfectly calibrated to the actual harm Bob Scott basically is saying like it's better to have rough justice That reduces the likelihood of actual cases then perfect justice that encourages people to fight And and that's sort of and that's like that is the ultimate thing that the court adopts is is this Idea of like a litigation reducing contract rule. I Know that you like the idea of rough justice in the like as a as a I have to I don't know that I would characterize this These rules as doing that. I actually think that's sort of the I mean, so the extent that you believe that that Rules that are clear and specific and available ex ante Put the parties on notice Then it's not obvious to me what justice is as between the parties And I think that part of the thing here is that there is no justice no justice Someone's gonna get like the the market change in ways they all could have predicted ex ante But didn't or or maybe they did and that's why they got the Congress that they did Someone's gonna get this extra money. It's either gonna be tongueish or it's gonna be coop or it's gonna be bambino Or it's gonna be some mix of them. Yeah In the we're just looking for an answer the stakes for right. We're just looking for an answer That's right. Yeah, that's the other reason why the case is amazing is because it leaves you in this place to sort of say like Does it even matter what the answer is like what is the best way to evaluate the correctness of this decision? Bob Scott says this stuff about efficiency. It's a sort of a nonsense concept The allied says some stuff about fairness, which we believe probably doesn't end up mattering that much As between the sunflower seed you don't want it to be about motive about bad faith or or willfulness and Then you end up saying like it could have been a coin flip either result like in the great like You know circle of contracting life ends up being washed out by people's abilities to bargain around it and Every argument that we make Contracting costs go up or down litigation costs go up or down people's incentives to breach go up or down Ends up really not working that well like it doesn't all of those arguments and end up being pretty weak when you push on them. And then you realize that I mean, at least I realized that I want to argue that the result in the case, it's just a matter of legal method. You make the best arguments you have with the facts. You imagine what you want to. You play method acting with Bambino. You play method acting with Tungish. You try to generate sort of a story that feels comments intuitive about why this is the right result and then you move forward to the next case. Without ever believing that you have like a monopoly on the right answer to any particular rule. So I mean, for me, it's the case that sort of encapsulate the whole point of the course. But do you think that there's a little bit more there to, I guess I don't just think it's about sort of the best arguments for who the parties are. I actually think that you can think about this as a resolution of an ambiguity in the code. You could think about this as being just like, Luel and part two, right? With this, we got to solve this problem. One, one, six, look like it's doing something different than two, seven, thirteen, right? Which, and you say, well, as long as two, seven, as long as two, seven, twelve exists, two, seven, twelve is the cover one. As long as two, seven, twelve exists, this doesn't make any sense. Right. It also, not to mention the difficulty, frankly, in most of the time of coming, I mean, there's something a little metaphysical about the case sometimes, right? Like, what did you really expect? Like, in your heart? And that's a little, like, you know, that way. - And by the way, like, was your expectation shaped at all by what the law says your expectation should be? - Yeah, exactly. Then you get into this like recursive nonsense that, yeah. - I mean, you and I have done work on sort of people's intuitions about what contract rules are. And very often, I think we found that you know, their intuitions are, you know, pretty simple and pretty formal. The idea and not like very detailed. And the idea that people would have strong moral intuitions about this case strikes me as unlikely. And so this is a case where really, like, you know, what did they expect? You know, they probably didn't think about it. They didn't think about it. And if we asked them, they would come up with unstable answers. I think they come up with the answer that the court comes up with. - Oh, no. - Yeah, it's the closest thing to specific performance. You had to give over those seats. You can't be wandering off with Thomas. - Coop just got a windfall on their middle person. Everyone hates middle people. - They don't, they just think, I mean, maybe like, if we were doing some kind of, that's a different and more complicated set of intuitions, than the set of intuitions that says, like, you promised to deliver sunflower seeds. You broke your promise. If it's expensive to deliver, then that's on you. - You were a great American capitalist and promised to either give the seeds or give the money that the seeds represented. - Even homes didn't believe that. - Well, I like that. (laughing) I think the case is super fun. And I use it for all kinds of purposes throughout the course. And I guess I'm hopeful that the folks listening to this find it a little bit fun. I understand that no one in the 17 years that I've been teaching has ever found the case as fun as I find it. I think that's fair to say. I think no one has ever thought it was as interesting as I do. - I did a couple years ago try to write a whole exam really playing with this fact pattern. And I got no bites basically from students. They were just like, "No, this is not." I think they were just like, "What is the rule?" Move along, come on now. It's just, it's just marketplace as contract price. I don't want to hear it about, you know, what you're talking about. - Right, no. I also have definitely occasionally fallen to the trap of just testing about tongueish as a frame. And yeah, students don't, I don't think that they love it in the way that I hope. - Yes, they don't find it delightful. - No, they don't find it delightful. But if you are listening to this recording and you find the case delightful, then that's awesome. And I encourage you to eat more of the sunflower seeds and spit them wherever quarantine house you're in. I think it's totally not. - Especially not in the pandemic, don't you? - Don't get, don't spit them, that's terrible. No, especially it's disgusting, disgusting. All right. - Awesome, I'm gonna, all right.