what law school has taught me thus far

just like any good law student should, i have become a part of a study group.  ok, this isn't a big feat or accomplishment because my study group was practically handed to me by the university, but oh well.  we don't need to focus on that.  i really like my study group.  it consists of my good friend bekah, two mormon dudes, and another girl. as part of our study sessions, we have decided to write out hypothetical situations and apply the different law concepts we're learning in our classes.  so, ideally, in each study session we have a hypothetical for:
                        1) torts
                        2) civil procedure
                        3) contracts
someone is assigned to write a hypo for one specific class that has to do with the principles we have been learning and then we reason through the problem together.

i was assigned contracts last week and this is what i came up with:

             Eleanor and Carl have known each other for a few months.  There has always been romantic tension, but what that tension really means has never been resolved.  Eleanor likes Carl, could see them together and successful, thinks that he could be thinking the same thing, but gets the distinct feeling that Carl is a player not quite ready to quit his playing ways. 

             Carl is a recovering womanizer.  When he met Eleanor he thought he might have met his match: the woman who could settle him down.  But he knew things would be serious with her and was afraid that he wouldn’t be able to man up to all of that. 

             As they spent more time together, the chemistry between the two became undeniable.  Eleanor did her best to maintain boundaries until some sort of commitment was made, but Carl was persistent.

             One stormy evening on a cozy couch, Carl and Eleanor were sharing a blanket watching a movie.  However, Carl had something very different in mind and tried time and again to kiss Eleanor.  But Eleanor’s kiss-dodging skills were sharp.  Finally, as Carl made one last move, Eleanor turned to him and said, “I am not a game and I will not let you play me.  You can not kiss me if it is only going to be a game.”  Carl looked her straight in the face, nodded, and kissed her. 

             The very next day, Carl disappeared completely from Eleanor’s life.  Eleanor is now suing Carl for breach of contract.  

                            Was Carl’s kiss a contract?

what do you think?  contract? 

the answer to this question is: yes.  by kissing eleanor, carl contracted not to play her.

let me tell you why.

in order to have a contract you need either mutual assent or consideration.  so, let's see if there is mutual assent, shall we?

mutual assent needs two things:

          1) an offer

          2) acceptance of that offer

so, is there an offer an offer in this situation?

              yes.  the offer of a kiss from carl to eleanor.

is that offer accepted?

              no.  eleanor rejects the original kiss offer and supplies a counteroffer: "you can not kiss me if it is only going to be a game."

is that offer accepted?

             yes. "carl looked her straight in the face, nodded, and kissed her."

and there you have it.  mutual assent.  contract.

we have already proved that, since there is mutual assent (both parties agreeing on the terms of the kissing), there is a contract.  but we are in law school now, and so we have an unconquerable urge to be thorough so we don't get sued for malpractice.  so, just to be safe, let's see if we can find consideration.

*note- i don't like consideration as much as i like mutual assent because it is a lot harder and because i don't fully understand it.  but that's no excuse not to make me delve right into it in front of the whole class.  just ask my professors.  so, let's soldier on by attempting to define consideration.  

consideration is an inducement (encouragement, attraction, enticement) to enter into a contract and can be in the way of a benefit to the person who makes the promise (promisor) or a detriment to the person accepting the promise (promisee).  in other words, in order to have consideration in a promise the promisor has to be benefitted or the person who is accepting the promise has to be, in some way, detrimented.   

                 promisor benefit: kissing eleanor

                 promisee detriment: kissing carl

there seems to be consideration here, but let's try one more test just for fun.

another way to test consideration is to see if the promise leads to the detriment.  in this case, the promise does lead to the detriment which leads to the promise which leads to the detriment in one continuous and eternal round.  look:

                                  promise:                                                      detriment:

                                         to kiss   ----------------------------------->    to be kissed 

                                         

                                         to kiss   <-----------------------------------    to be kissed

a perfect case for consideration.  

in conclusion, on both counts and for both conditions, yes.  this kiss is a contract.  i'm sorry, brett and gemaine, but the truth is that sometimes, a kiss is a contract.  at least, that's what i learned in law school.