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CONTRACTS IN THE REAL WORLD

Contracts, the foundation of economic activity, are vital,

fascinating, and misunderstood. Through a series of
engaging stories – involving such captivating individuals
as the late Maya Angelou, Clive Cussler, Lady Gaga, Paris
Hilton, Martin Sheen, and Donald Trump – this book
corrects the misunderstandings. Capturing the essentials
of this subject and reviewing the classic cases, the book
explores recurring issues people face in contracting. It
shows how age-old precedents and wisdom still apply
today and how contract law’s inherent dynamism cautions
against exuberant reforms. The book will appeal to the
general reader and specialists in the field alike, and espe-
cially to teachers and students of contracts.

Lawrence A. Cunningham is the Henry St. George

Tucker III Research Professor at the George Washington
University Law School. Cunningham is the author of a
dozen books, including the classic work, The Essays of
Warren Buffett: Lessons for Corporate America, and he served
as editor for seven years of the leading treatise on con-
tract law, Corbin on Contracts. His op-eds have appeared
in leading periodicals including The Financial Times, The
National Law Journal, The New York Times, and The Wall
Street Journal. Professor Cunningham’s research has been
published in journals of leading universities including
Columbia, Cornell, Duke, Harvard, Michigan, UCLA,
Vanderbilt, and Virginia.
Contracts in the Real World
STORIES OF POPULAR
CONTRACTS AND WHY
THEY MATTER

Second Edition

Lawrence A. Cunningham
George Washington University Law School
32 Avenue of the Americas, New York NY 10013-2473, USA

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of

education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781316506585

© Lawrence A. Cunningham 2016

This publication is in copyright. Subject to statutory exception

and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.

First published 2012

Second Edition First Published 2016

Printed in the United States of America

A catalog record for this publication is available from the British Library.

Library of Congress Cataloging in Publication Data

Names: Cunningham, Lawrence A., 1962– author.
Title: Contracts in the real world : stories of popular contracts and why they
matter / Lawrence A. Cunningham, George Washington University Law School.
Description: Second edition. | Cambridge : New York :
Cambridge University Press, 2016. | Includes bibliographical references and index.
Identifiers: LCCN 2016001234| ISBN 9781107141490 (hardback) |
ISBN 9781316506585 (paperback)
Subjects: LCSH: Contracts – United States. | BISAC: LAW / Contracts.
Classification: LCC KF801.C86 2016 | DDC 346.7302/2–dc23
LC record available at http://lccn.loc.gov/2016001234

ISBN 978-1-107-14149-0 Hardback

ISBN 978-1-316-50658-5 Paperback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs
for external or third-party Internet Web sites referred to in this publication and does not
guarantee that any content on such Web sites is, or will remain, accurate or appropriate.
For Stephanie,
My Dream Come True,
And to the loving memory of her Dad, Fred Cuba.
CONTENTS

Annotated Contents page xiii

Acknowledgments xxvii

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1 Getting In: Contract Formation . . . . . . . . . . . . . . . . 11

A. Handshakes and Feuds from Snapchat to Facebook 11
Sufficient Definiteness: Urban Decay 13
B. Gifts, Bargains, Reliance: Martin Luther King,
Jr. and Boston University 14
A Charitable Pledge 17
Estopping Aretha Franklin 19
C. Ads or Offers: Pepsi and Harrier Jets 20
“First Come, First Served” 22
Orders at the U.S. Mint 23
Jesting 23
D. Frolic or Acceptance: Boasts on “Dateline NBC” 24
The Curious Carbolic Smoke Ball 25
The Hole in One 27
A YouTube Reward 29
E. Offers: Comedians and Drunks 30
Big Deal on a Diner Check 31
F. Mutual Assent: Spyware and Secret Clauses 32
Two Ships Peerless 34
Terms in a Box: “Rolling Contracts” 35

vii
viii Contents

G. Assent, Acceptance, and Digital Terms of Use 37

Carnival Cruise’s Bold Conditions 39
Facebook 40
Gogo 41
H. Policies or Pacts: The Cleveland.com Blogger 43
Mobil Coal’s Employee Handbook 44
Breaching Promises of Secrecy 45
2 Facing Limits: Unenforceable Bargains. . . . . . . . . . . . 49
A. Unconscionability: Gail Waters’s Annuity Swap 49
Chasing Alaska Gold 50
Escaping Nazi Greece 52
The Christmas Dollar Joke 54
B. Blackmail: Michael Jordan’s Paternity 55
The Blackmail of David Letterman 56
Child Support 57
C. Palimony: The Rapper 50 Cent 59
Lee Marvin’s Lover 61
D. Gambling: Octogenarian Powerball Sisters 63
E. Making Babies: Baby M, Baby Calvert 67
3 Getting Out: Excuses and Termination . . . . . . . . . . . . 73
A. Mistake and Warranty: Madoff’s Ponzi Scheme 73
The Forged Dime 75
The Fertile Cow 77
Laura’s Victory 77
The Fake Stradivarius 78
B. Impossibility and Force Majeure: Donald Trump 81
The Uninsurable Roller Rink 83
C. Infancy: Craig Traylor of “Malcolm in the Middle” 85
D. Outrage: AIG’s Employee Bonuses 88
E. Embarrassment: The New York Mets and Citi Field 93
F. Pledge Agreements, Intent, and Change 96
Princeton: Mutual Pyrrhic Victories in Court 97
Avery Fisher Hall: Mutual Gains from Contracting 98
Contents ix

4 Paying Up: Remedies. . . . . . . . . . . . . . . . . . . . . 102

A. Interests and Limits: Paris Hilton and “Pledge This!” 102
“Clever Endeavor” 104
Vanessa Redgrave’s Losses 105
Jack Dempsey’s Breached Bout 106
Robert Reed’s English Misadventure 107
B. Compensation: Paris Hilton and Hairtech 109
The Hairy Hand 110
The Beatles’ Recordings 111
C. Markets and Mitigation: Redskins Season Tickets 112
The Bridge to Nowhere 113
Lost Volume Sellers 114
Shirley MacLaine’s “Bloomer Girl” 116
D. Stated Remedies: Sprint’s Early Termination Fees 117
The Delayed Mausoleum 118
Vanderbilt’s Traitorous Football Coach 119
E. Specific Performance: Tyson Chickens and IBP Pork 122
A Unique Manhattan Billboard 123
5 Rewinding: Restitution and Unjust Enrichment . . . . . . 127
A. Gratuity or Exchange: Caring for Aunt Frances 127
Bascom’s Folly 128
Emergency Surgery 129
B. Mere Volunteers: Battling Alaskan Beetles 131
The Plagiarism Informant 132
C. Trailing Promises: Lena Saves Lee’s Life 133
The Heroic Lumberman 135
An Escaped Bull 136
D. Novel Ideas: The Making of “The Sopranos” 136
E. Off-Contract Remedies: Rod Stewart at the Rio 140
6 Writing It Down: Interpretation, Parol, Frauds . . . . . . 144
A. Plain Meaning I: Eminem’s Digital Records 144
B. Plain Meaning II: Dan Rather’s Last Broadcast 148
C. Parol Evidence: The Golden Globes 150
x Contents

D. The Unruliness of Words – and Numbers 155

WTC and 9/11: One Occurrence or Two? 155
The Hobbit: One Film or Three? 158
Howard Stern’s Audience: One Group or Two? 160
E. Scrivener’s Error: Who Owns the L.A. Dodgers? 163
The Fraudulent Architect 165
The Erroneous Deed 166
F. Statute of Frauds: Cliff Dumas’s Phantom Radio Deal 167
Jane Fonda’s Luckless Agent 169
Elizabeth Arden’s Fortunate Hire 171
7 Performing: Duties, Modification, Good Faith . . . . . . . 175
A. Implied Terms: Butch Lewis and Maya Angelou 175
Lucy, Lady Duff-Gordon 177
B. Express Terms: Clive Cussler’s Movie “Sahara” 179
TSM’s Tom Waits Recordings 182
Lucy, Again 183
C. Unanticipated Circumstances: Deutsche Building 184
Unexpected Industrial Detritus 187
Unexpected Landfill Needs 188
The Salmon Fishermen’s Threat 189
D. Accord and Satisfaction: Lady Gaga 189
The Disputed Home Improvements 192
E. Adjustment: Conan and “The Tonight Show” 194
8 Hedging: Conditions . . . . . . . . . . . . . . . . . . . . . 199
A. Interpretation and Effect: Kevin Costner’s Bison 199
An Aborted Vineyard Sale 201
A Crop Insurance Caper 202
B. Order of Performance: Charlie Sheen and Warner 203
The Country Hotel Sale Bust 206
The Four-Stage Construction 207
C. Partial or Total Breach: Sheen and Warner II 208
An Accidental Bulldozing 209
D. Waiver: Sheen and Warner III 211
The Imbibing Professor 212
Contents xi

E. Substantial Performance: Sandra Bullock’s Lake House 213

The Wrong Plumbing Pipes 216
A Misplaced Living Room Wall 217
The Unrestored Peevyhouse Property 218
The Ungraded Gravel Lot 218
9 Considering Others: Third Parties and Society . . . . . . 221
A. Beneficiaries: Supply Chain Abuse at Wal-Mart 221
A Sweatshop in Brooklyn 224
B. Assignment: JP Morgan’s Cablevisión Loan 225
Sally Beauty 226
Haagen-Dazs Ice Cream 229
C. Interference: New England Patriots and StubHub 229
D. Torts: Katie Janeway’s Tragic Accident 233
Amnesty for Ordinary Negligence 234
A Misleading Authorization 236
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 240

Appendix A: Offering and Accepting 243

Appendix B: Buying and Selling Goods 247
Notes 251
Table of Cases 275
Index 281
ANNOTATED CONTENTS

1. GETTING IN: CONTRACT FORMATION

Tools to distinguish enforceable promises from others – seals, writings,

deals, and reliance – and to evaluate intention to bargain: offer, accep-
tance, and mutual assent.

A. Handshakes and Feuds from Snapchat to Facebook

On the value of forming thoughtful contracts, using the context of

feuds among entrepreneurs who bungled the job at companies such as
Snapchat, Urban Decay, and Facebook.

B. Gifts, Bargains, Reliance: Martin Luther King, Jr. and

Boston University

Why bargains but not promises to make gifts are enforceable as con-
tracts and how to tell the difference, using the case of Martin Luther
King’s donation of his papers to Boston University.

C. Ads or Offers: Pepsi and Harrier Jets

The difference between an unenforceable ad and an enforceable offer,

using the case of a consumer’s effort to hold Pepsi to a deal for a mili-
tary fighter jet based on a humorous television commercial.

xiii
xiv Annotated Contents

D. Frolic or Acceptance: Boasts on “Dateline NBC”

The difference between mere talk and valid offers that can be accepted
to form a contract, using the case of a law student taking up prominent
criminal defense lawyer J. Cheney Mason’s boast on “Dateline NBC”
about the strength of his defense in a capital murder trial.

E. Offers: Comedians and Drunks

Why the offers of jokesters and inebriated persons may not create the
power of acceptance, using the case of Donald Trump attempting to
accept an offer made in jest by comedian Bill Maher along with a clas-
sic case of a sizable business transaction jotted down on a diner check.

F. Mutual Assent: Spyware and Secret Clauses

Why mutual assent is required to form contracts and how it is tested,

using controversial cases of software users subject to restrictions bur-
ied electronically or appearing inside the product’s packaging.

G. Assent, Acceptance, and Digital Terms of Use

Prevailing practices and approaches to electronic contracting on the

Internet, using a classic case involving a cruise line ticket to assess the
terms of use of companies such as Facebook and Gogo.

H. Policies or Pacts: The Cleveland.com Blogger

The rising struggle about whether corporate policies, especially about

privacy on the Internet, are enforceable as contracts, using the exam-
ple of a blogger at Cleveland.com and analogizing today’s challenge to
contract law’s resolution during the 1990s of disputes about whether
employee handbooks are enforceable as contracts.

Synthesis: Why neither formal rules and pure objectivity nor pure con-
text and subjectivity are sufficient to determine the existence of an
enforceable contract and how these ideas combine to forge powerful
and capacious tools to govern contract formation.
Annotated Contents xv

2. FACING LIMITS: UNENFORCEABLE BARGAINS

Boundaries of enforceable contracts, which exclude those merely dis-

guised as bargains and those bordering on illegality or violating pre-
vailing sense of public policy.

A. Unconscionability: Gail Waters’s Annuity Swap

Why courts rarely examine the fairness of exchange but will probe
contracts on massively lopsided terms plagued with bargaining irregu-
larities, using the example of an impressionable young woman’s agree-
ment to sell for $50,000 cash an annuity contract with a cash surrender
value of $189,000.

B. Blackmail: Michael Jordan’s Paternity

Why courts resist enforcing bargains amounting to blackmail and how

to distinguish those from valid contracts, highlighting the context of
patrimony, and illustrated using a case involving Michael Jordan.

C. Palimony: The Rapper 50 Cent

Why courts struggle against enforcing contracts for personal services

among unmarried cohabitants except when other elements of a bar-
gain appear conspicuously, using the example of claims of a paramour
against the rapper 50 Cent.

D. Gambling: Octogenarian Powerball Sisters

Why courts defer to people’s freedom of contract yet still identify a

class of cases as illegal bargains that courts would not enforce, using the
case of two elderly sisters who made an agreement about lottery tickets.

E. Making Babies: Baby M, Baby Calvert

Continuing struggles in law, society, and technology concerning human

reproduction, addressing contracts involving multiple participants in
xvi Annotated Contents

child bearing, contrasting competing approaches states take, from

banning, to regulating, to endorsing this field of human endeavor.

Synthesis: Why neither pure freedom of contract nor excessive judicial

second-guessing of the legitimacy of contracts is desirable.

3. GETTING OUT: EXCUSES AND TERMINATION

Legitimate grounds to excuse an otherwise enforceable contract, such

as mutual mistake, impossibility, infancy, mental illness, fraud, and
express termination clauses – albeit not including hysteria resulting
from public outrage or private embarrassment.

A. Mistake and Warranty: Madoff ’s Ponzi Scheme

Why problems existing but unknown when a deal is made, owing to

mutual mistake or warranty, can justify excusing contractual obliga-
tion, using the case of a divorcing couple’s settlement agreement based
on the existence of a Madoff account that turned out to be fictional.

B. Impossibility and Force Majeure: Donald Trump

Why problems arising from supervening events like fire, flood, and
other catastrophes that make performance impossible or impracticable
can justify excusing contractual obligation, using the case of Donald
Trump’s effort to delay loan repayment duties in light of the 2008
financial crisis.

C. Infancy: Craig Traylor of “Malcolm in the Middle”

Why minors and mentally ill persons have the right to elect to affirm or
disaffirm otherwise valid contracts they make, using the case of child
actor Craig Lamar Traylor who elected to disaffirm a contract with his
personal manager, Sharyn Berg.

D. Outrage: AIG’s Employee Bonuses

Why public outrage is not a ground to rescind a bargain, and how the
terms of a contract govern whether it must be performed or not, using
Annotated Contents xvii

the example of the bonuses AIG paid employees during the 2008
financial crisis.

E. Embarrassment: The New York Mets and Citi Field

How contracts can be used to promote business relationships with

parties who can become an embarrassment and why this does not
excuse the obligation, using the example of the contretemps over the
deal Citicorp made to name The New York Mets’ home field, at the
crest of the 2008 financial crisis.

F. Pledge Agreements, Intent, and Change

Problems that arise when philanthropic relationships sour and how

to handle changing attitudes and performances, using examples of
Princeton University’s Pyrrhic litigation victory over a major donor
compared with the successful renegotiation of a pledge agreement by
Lincoln Center with the heirs of Avery Fisher.

Synthesis: Why ancient doctrines like caveat emptor (let the buyer
beware) or pacta sunt servanda (promises are kept) are vital but cannot
be absolute, and how contracts and contract law rather than politics
and ideology rightly define the terms of bargains people make.

4. PAYING UP: REMEDIES

Remedies for breach of contract, primarily compensation for disap-

pointed expectations, along with limits on remedies.

A. Interests and Limits: Paris Hilton and “Pledge This!”

Contract law’s remedies for breach of contract designed to protect

interests in expectancy, reliance, and justice, subject to limitations
requiring losses to be shown with reasonable certainty and foreseeable
as a result of breach, using the example of Paris Hilton’s agreement to
promote the raunchy film “Pledge This!”
xviii Annotated Contents

B. Compensation: Paris Hilton and Hairtech

Differences between how contract claims award remedies to compen-

sate and tort claims that can include damages to punish, using the case
of claims by Hairtech International against Paris Hilton for failing to
promote hair care products as promised.

C. Markets and Mitigation: Redskins Season Tickets

Standard market references contract law uses to measure damages

from breach and associated limitations on recovery for losses that can
be avoided with reasonable diligence, using the case of claims by the
Washington Redskins against season ticket buyers who breached their
agreements to buy tickets.

D. Stated Remedies: Sprint’s Early Termination Fees

The possibility of contracts stating the remedy for breach and how
courts police these for excess, using the case of early termination fees
in cell phone service contracts.

E. Specific Performance: Tyson Chickens and IBP Pork

Limited times that courts require contract parties to perform their

promises specifically, as opposed to paying money damages, when
money would not be adequate to protect an interest because of unique
features of the bargain, using the case of a merger agreement between
Tyson Foods and IBP.

Synthesis: Why awarding money damages in most cases works while

holding out the possibility of specific performance in extraordinary
cases, as well as the possibility of restitution when all else fails.

5. REWINDING: RESTITUTION AND UNJUST ENRICHMENT

A body of law intertwined with contracts, called restitution, available

to promote justice when contract law’s standard tools break down,
Annotated Contents xix

recognizing obligations where contract law might not and awarding

remedies to prevent unjust enrichment.

A. Gratuity or Exchange: Caring for Aunt Frances

Difference between those conferring benefits gratuitously and those

doing so in the expectation of compensation or reimbursement, using
the example of family caretakers.

B. Mere Volunteers: Battling Alaskan Beetles

Limits of restitution, not extending to cover mere volunteers, using

the example of a prospective buyer of Alaskan timberland voluntarily
preparing a site study amid Alaska’s beetle epidemic that threatened
the state’s forests.

C. Trailing Promises: Lena Saves Lee’s Life

Why promises made after someone else has conferred a bene-

fit are rarely valid, using the case of one neighbor saving another
neighbor’s life.

D. Novel Ideas: The Making of “The Sopranos”

When no contract is formed, but one person shares ideas with another
who exploits them for gain, a claim in restitution can arise so long as
the ideas were novel but not otherwise, using the example of a munic-
ipal judge’s claim to a share of the profits from the hit HBO television
series “The Sopranos.”

E. Off-Contract Remedies: Rod Stewart at the Rio

When a contract is too indefinite to resolve a dispute over entitlement

to money, off-contract remedy of restitution to prevent unjust enrich-
ment can apply, using the example of a $2 million advance paid to Rod
Stewart for a concert he could not perform because of complications
arising after his throat surgery.
xx Annotated Contents

Synthesis: Why formal rules of contract should be resisted to enable the

flexible protection of interests that the doctrine of restitution enables.

6. WRITING IT DOWN: INTERPRETATION, PAROL, FRAUDS

The significance, problems, and requirements of putting a deal in

writing.

A. Plain Meaning I: Eminem’s Digital Records

How courts interpret written contracts, evaluating whether contrac-

tual expressions manifest a plain meaning or require additional evi-
dence, using the case of rapper Eminem’s claim against his record
producer about whether recordings marketed as iTunes and ringtones
are “sales” or “licenses.”

B. Plain Meaning II: Dan Rather’s Last Broadcast

Example of plain meaning interpretation that complements the pre-

ceding story, showing how telltale linguistic cues convey a plain mean-
ing, using the example of CBS’s termination of Dan Rather following
controversial news broadcast about President Bush’s Vietnam-era mil-
itary service two months before the 2004 presidential election.

C. Parol Evidence: The Golden Globes

Why complete and final written agreements prevent consideration of

evidence about previous or contemporaneous deal making, using the
example of a production contract for the Golden Globes.

D. The Unruliness of Words – and Numbers

Challenges of drafting contracts to reflect intended agreements clearly

and interpreting them later, using examples that pose numeric ques-
tions: whether the September 11, 2001 attacks on New York’s World
Trade Center were one occurrence or two under applicable insurance
policies; whether a film based on Tolkien’s “The Hobbit” was a single
Annotated Contents xxi

film or three installments; and whether Howard Stern was really enti-
tled to $300 million when his satellite radio partner doubled his audi-
ence by buying a rival.

E. Scrivener’s Error: Who Owns the L.A. Dodgers?

Effects of fraud and mistake on determining obligations, using the

example of scrivener’s error in preparation of postnuptial agree-
ment between Jamie and Frank McCourt about ownership of the Los
Angeles Dodgers baseball team.

F. Statute of Frauds: Cliff Dumas’s Phantom Radio Deal

Limited but important circumstances where contracts must include

a writing to be valid, along with exceptions and how the requirement
is met, using the example of country music radio personality Cliff
Dumas’s employment with a local radio station.

Synthesis: Why “putting it in writing” is not always the surest path to

contractual certainty, but how it remains an appealing way to iron out
the details, contract law taking the pragmatic middle ground between
those who invest full faith in written expression and those incapable of
believing that sometimes words have plain meanings.

7. PERFORMING: DUTIES, MODIFICATION, GOOD FAITH

What having a contract entails and how duties may be adjusted during
performance.

A. Implied Terms: Butch Lewis and Maya Angelou

The role good faith can play to fill in gaps in indefinite, incomplete,
or tentative agreements, using the case of the entertainment impresa-
rio Butch Lewis’s deal to promote the late poet Maya Angelou’s work
as greeting cards with Hallmark, in a deal that generated hundreds of
millions of dollars for the card company and many millions of dollars
in royalties.
xxii Annotated Contents

B. Express Terms: Clive Cussler’s Movie “Sahara”

The relation between express contract terms and standards of good

faith, using the case of best-selling adventure novelist Clive Cussler’s
deal with billionaire Philip Anschutz’s Crusader Entertainment to
make a movie of Cussler’s book, “Sahara.”

C. Unanticipated Circumstances: Deutsche Building

Why unanticipated circumstances can justify departing from literal

terms of a contract, but how promises extorted by duress are unen-
forceable, using the example of Bovis Lend Lease’s fixed-price con-
tract to demolish the Deutsche Bank building in Lower Manhattan,
rendered dangerous by 9/11.

D. Accord and Satisfaction: Lady Gaga

Why parties may settle bona fide disputes by contracts called “accord
and satisfaction,” using the example of disputes between music pro-
ducer Rob Fusari and pop performer Lady Gaga.

E. Adjustment: Conan and “The Tonight Show”

Renegotiation of contracts, role of good faith, covenants not to com-

pete, and remedies using the 2010 dispute between Conan O’Brian
and NBC over “The Tonight Show.”

Synthesis: Why the prevailing scope of the duty of good faith and
respect for the express terms of a bargain properly balance the need
for flexibility in contractual relationships with aversion to holding con-
tracting parties to standards of conduct to which they did not assent.

8. HEDGING: CONDITIONS

Why and how parties limit the scope of their promises with conditions,
express or implied, and how contract law’s tools reinforce bargains
and protect their fruits rather than encourage parties to walk away and
scatter losses.
Annotated Contents xxiii

A. Interpretation and Effect: Kevin Costner’s Bison

How to determine whether a contractual expression makes a promise,

whose breach entitles the injured party to remedies, or states a condi-
tion, whose non-occurrence excuses duties, using the case of Kevin
Costner’s commission of fine rural American sculpture inspired by his
film “Dances With Wolves.”

B. Order of Performance: Charlie Sheen and Warner

How to minimize problems arising from finger-pointing about who

breached first with constructive conditions to regulate the order
of performance, using the example of the saga of actor Charlie
Sheen’s role on the Warner Brothers television show “Two and a
Half Men.”

C. Partial or Total Breach: Sheen and Warner II

Why contract law encourages parties to use self-help and other steps
to promote performance and protect the bargain, highlighting differ-
ent calibers of breach, especially partial and total breach, continuing
the example from the saga of Sheen and Warner.

D. Waiver: Sheen and Warner III

How parties can make minor adjustments, but not major modifica-
tions, to their ongoing deals by waiver, opening disputes about whether
some commitments are promises or conditions, rounding out the saga
of Sheen and Warner.

E. Substantial Performance: Sandra Bullock’s Lake House

Why a party in default can recover anyway, at least if they substantially

performed, compensating the other side in money, using the example
of Sandra Bullock’s contract to build a mansion in Austin, Texas.

Synthesis: Why parties should be encouraged to use self-help, backed

by the strength of judicial enforcement.
xxiv Annotated Contents

9. CONSIDERING OTHERS: THIRD PARTIES AND SOCIETY

The limited rights and related duties third parties have concerning
contracts to which they are strangers.

A. Beneficiaries: Supply Chain Abuse at Wal-Mart

Scope of rights of third parties to enforce contracts to which they are

strangers, highlighting the case of foreign employees against Wal-Mart
for violations of local labor laws by its suppliers.

B. Assignment: JP Morgan’s Cablevisión Loan

Scope and limits of party’s rights to transfer contract interests, using

the example of JP Morgan’s attempted sale of a loan contract to a com-
petitor of the borrower.

C. Interference: New England Patriots and StubHub

Limitations on the rights of third parties to interfere with the contracts

of others, using the example of the New England Patriots challenging
the online ticket service StubHub for arranging sales of Patriots’ sea-
son tickets.

D. Torts: Katie Janeway’s Tragic Accident

Why courts police bargains that purport to exculpate people from

civic obligation, like negligence, using the example of contracts pur-
porting to relieve sports and recreational facilities from liability for
grossly negligent behavior.

Synthesis: Why law rightly limits the rights of strangers to contracts to

enforce them and protects the interests of parties in contractual rela-
tionships from impairment by assignment or by tortious interference
from others and law’s interest in standards of behavior that may trump
freedom of contract.
Annotated Contents xxv

APPENDIX A: OFFERING AND ACCEPTING

A concise statement of the principal tools used to analyze contract for-

mation, especially offer and acceptance.

APPENDIX B: BUYING AND SELLING GOODS

A concise statement of the principal differences between the gen-

eral common law of contracts and the special rules of the Uniform
Commercial Code that govern transactions in goods.
ACKNOWLEDGMENTS

Thanks to students, professors, and critics alike for their warm recep-
tion of this book’s first edition and to my publisher for supporting
this second edition. The book received the 2012 American Library
Association Choice Award for Outstanding Title. In 2013, it was the
subject of a printed symposium in volume 88 of the Washington Law
Review, with contributions from Professors Aditi Bagchi (Fordham),
Brian Bix (Minnesota), Larry DiMatteo (Florida State), Erik Gerding
(Colorado), Charles Knapp (Hastings), Jake Linford (Florida State),
and Jennifer Taub (Vermont). In an online symposium hosted by
Concurring Opinions, additional commentary was offered by students
Umo Ironbar (St. Louis University) and Lucy Martucci (Cardozo),
as well as Professors Miriam Cherry (St. Louis), Ronald Collins
(Washington), Susan Heyman (Roger Williams), David Hoffman
(Temple), Nancy Kim (California Western), Donald Langevoort
(Georgetown), and Tom Lin (Temple).
Among helpful notices of the first edition, thanks to Miriam
Cherry (St. Louis) for a review in volume 35 of the Hawaii Law
Review; Matthew Mantel of the University of Houston who reviewed
the book in the O’Quinn Law Library’s blog; and to journalists who
referenced the book in their reporting, including Peter Lattman of The
New York Times and Joe Barrett of The Wall Street Journal. For correc-
tions to the text of the first edition, thanks to readers Colin Samuels
and Steven Sholk.
For comments on all or portions of the manuscript of the first edi-
tion, thanks to many of those listed above as well as Ian Ayres (Yale),
H. Jefferson Powell (Duke), James Steven Rogers (Boston College),

xxvii
xxviii Acknowledgments

Michael Selmi (George Washington), Douglas Whaley (Ohio State),

and several anonymous reviewers commissioned by Cambridge
University Press. For editing the manuscript, thanks to my longtime
book editor, Ira Breskin; my chief editorial aide, Stephanie Resnik; and
my research assistants, Chris Davis, Christa Laser, and Zachary Stern.
For help identifying new story ideas in this second edition, thanks
to Professors Renee Allen (Florida A&M), Jonathan Barnett (USC), Al
Brophy (Alabama), Miriam Cherry (St. Louis), Enrique Guerra-Pujol
(Florida Central), Tom Lin (Temple), Gregg Polsky (North Carolina),
Jeremy Telman (Valparaiso), and John Wladis (Widener).
Thanks to the editors of the dozen casebooks on contracts that
I examined in preparing this narrative. Their judgment helped me ver-
ify the canonical cases and doctrines and to test alternative ways to
arrange the materials to juxtapose the classics with contemporary sto-
ries in modern settings. Thanks finally to 130 contracts professors who
responded to the survey I prepared with the editors of the Washington
Law Review about their interests and appetites for course materials in
contracts.
Above all, thanks for patience, understanding, support, and editing
to my wife Stephanie; and for joy, hope, and sustenance to our daugh-
ters Rebecca and Sarah.
Another random document with
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populace of the city, some twenty-five thousand,[202] staring their
wonderment with open eyes and mouth, thronged either side of the
way along which marched the army in battle array, headed by the
cavalry. Never before had the Spaniards seen so beautiful an
American city. Cortés called it Seville, a name which Spaniards
frequently applied to any place that pleased them, as we have seen,
while the soldiers, charmed with its floral wealth and beauty, termed
it Villaviciosa, and declared it a terrestrial paradise. One of the
cavalry scouts, on first beholding the freshly stuccoed walls gleaming
in the sun, came galloping back with the intelligence that the houses
were silver-plated. It was indeed an important place, holding a large
daily market. A central plaza was inclosed by imposing temples and
palaces, resting on pyramidal foundations, lined with apartments and
surmounted by towers, and around clustered neat dwellings with
whitened adobe walls embowered in foliage. Statelier edifices of
masonry, some having several court-yards, rose here and there,
while in every direction spread an extensive suburb of mud huts with
the never failing palm-leaf roof. Yet even the humblest abodes were
smothered in flowers.[203] The people also, as we might expect by
their surroundings, were of a superior order, well formed, of
intelligent aspect, clothed in neat white and colored cotton robes and
mantles, the nobles being adorned with golden necklaces, bracelets,
and nose and lip rings, set with pearls and precious stones.

When the troops reached the plaza, Chicomacatl,[204] lord of the

province, stepped from the palace to receive his guests. He was
supported by two nobles, and though enormously stout,[205] his
features denoted high intelligence, and his manner refinement. He
was more of a gentleman than many of the Spaniards, whose
merriment over his corpulence Cortés was obliged to repress. After
saluting and wafting incense before the commander of the strange
company, Chicomacatl embraced Cortés and led him to his quarters
in the spacious halls adjoining the temple, after which he retired for a
time. There the men rested and refreshed themselves, guards being
carefully posted, for Cortés would not trust his fate to strangers, and
strict orders were given that no one should leave the building.[206]
It was not long before Chicomacatl returned in a litter with a
richly attired suite, bringing presents of fine robes, and jewels worth
about two thousand ducats. During the conversation that ensued,
Cortés as usual extolled the greatness and power of his king, and
spoke warmly of his mission to replace their bloody religion with a
knowledge of the true God. Were there wrongs to redress, that is to
say, when opportunity offered for the perpetration of a greater wrong
by himself, no knight of La Mancha or Amadis of Gaul could be more
valiant than he. In return the chief of Cempoala unbosomed himself,
for the manner of Cortés was winning, and his speech inspired
confidence whenever he chose to make it so. Then his fame, already
wide-spread over the land, and the dim uncertainty as to his nature,
whether more celestial or terrestrial, added weight to his words. So
Chicomacatl poured forth from an overflowing heart a torrent of
complaints against the tyranny of Montezuma. He drew for the
Spaniards a historic outline of the Aztecs—how a people the
youngest in the land had, at first by cunning and treachery, and
finally by forced allies and preponderance of arms, built their power
upon the ruin of older states. The Totonacs, whose records as an
independent nation in this region extended over seven centuries,
had succumbed only some twenty-five years before this.[207] And
now Montezuma’s collectors overran the provinces, gathering heavy
tributes, seizing the beautiful maidens, and conveying the men into
slavery or to the sacrificial stone. Neither life, liberty, nor property
could be enjoyed with any degree of safety.
Whereat Cortés of course was indignant. It was his special
business to do all the tyrannizing in that region himself; his sword
would give ample protection to his new allies, and bring abundant
honor to his king and himself. Let but the people prove loyal to him,
he concluded, and he surely would deliver them from the hated yoke;
yet he did not mention the more fatal bondage into which he would
place them. Chicomacatl eagerly assured Cortés of support from the
Totonacs, numbering fifty thousand warriors, with numerous towns
and fortresses.[208] Furthermore, there were many other states ready
to join an insurrection which should prove strong enough to brave
the terrible Montezuma.

Their visit over,[209] the Spaniards continued their march

northward to join the fleet. Four hundred tlamamas, or carriers,
attended, in courtesy to honored guests, to relieve the soldiers of
their burdens. The following day they reached Quiahuiztlan, a
fortified town about a league from the sea. This town was
picturesquely placed on a rocky promontory bordering one of the
many wild ravines thereabout, and of difficult access, commanding
the plain and harbor at its base.[210] The army advanced cautiously,
in battle array,[211] but the place was deserted. On reaching the
plaza, however, some fifteen chiefs came forward with swinging
censers, and apologized, saying that the people had fled, not
knowing what the strange arrival portended, but reassured by the
Cempoalans, they were already returning to serve them. The
soldiers then took possession of a large building, where food was
brought them. Presently the chief appeared; and close at his heels in
hot haste came the lord of Cempoala, who announced that the Aztec
collectors had entered his city.[212] While conferring with Cortés and
the chiefs assembled, Chicomacatl was informed that the collectors,
five[213] in number, had followed him to Quiahuiztlan, and were even
then at the door. All the chiefs present turned pale, and hastened out
to humble themselves before the officers, who responded with
disdainful condescension. The officers were clad in embroidered
robes, with a profusion of jewelry, and wore the hair gathered upon
the crown. In the right hand they carried their insignia of office, a
hooked carved stick, and in the left a bunch of roses, the ever
welcome offering of the obsequious Totonac nobles who swelled
their train. A suite of servitors followed, some with fans and dusters,
for the comfort of their masters. Passing the Spanish quarter without
deigning to salute the strangers, the emissaries of the mighty
Montezuma entered another large building, and after refreshing
themselves summoned the tributary chiefs, reprimanded them for
having received the Spaniards without permission from Montezuma,
and demanded twenty young persons for an atoning sacrifice. Well
might the demoniacal order cause to tremble every youth throughout
the land; for whose turn should be next none could tell. Even the
faces of the chiefs were blanched as they told Cortés, informing him
also that it was already determined in Aztec circles to make slaves of
the Spaniards, and after being used awhile for purposes of
procreation, they were to be sacrificed.[214] Cortés laughed, and
ordered the Totonacs to seize the insolent officials. What! lay violent
hands on Montezuma’s messengers? The very thought to them was
appalling. Nevertheless they did it, for there was something in the
tone of Cortés that made them obey, though they could not
distinguish the meaning of his words. They laid hold on those tax-
men of Montezuma, put collars on their necks, and tied their hands
and feet to poles.[215] Their timidity thus broken, they became
audacious, and demanded the sacrifice of the prisoners.[216] “By no
means,” Cortés said, and he himself assumed their custody.
Howsoever the cards fall to him, a skilful gamester plays each
severally, nothing cavilling, at its worth. So Cortés now played these
messengers, the method assuming form in his mind immediately he
saw them. With him this whole Mexican business was one great
game, a life game, though it should last but a day; and as the
agencies and influences of it fell into his fingers, with the subtlety of
the serpent he dealt them out, placing one here and another there,
playing with equal readiness enemy against enemy, and multiplying
friends by friends.
These so lately pride-puffed tribute-men, now low laid in the
depths of despondency—how shall they be played? Well, let them
be like him who fell amongst thieves, while the Spanish commander
acts the good Samaritan. In pursuance of which plan, when all had
retired for the night, he went stealthily to them, asked who they were,
and why they were in that sad plight, pretending ignorance. And
when they told him, this rare redresser was angry, hot with
indignation that the noble representatives of so noble a monarch
should be so treated. Whereupon he instantly released two of them,
comforting the others with the assurance that their deliverance
should quickly follow; for the emperor Montezuma he esteemed
above all emperors, and he desired to serve him, as commanded by
his king. Then he sent the twain down the coast in a boat, beyond
the Totonac boundary.
Next morning, when told that two of the Aztec captives had
broken their bonds and escaped, the Totonacs were more urgent
than ever for the immolation of the others. But Cortés again said no,
and arranged that they should be sent in chains on board one of his
vessels, determined afterward to release them, for they were worth
far more to his purpose alive than dead.
It is refreshing at this juncture to hear pious people censure
Cortés for his duplicity, and to hear other pious people defend him on
the ground of necessity, or otherwise. Such men might with equal
reason wrangle over the method by which it was right and honorable
for the tiger to spring and seize the hind. The one great wrong is lost
sight of in the discussion of numerous lesser wrongs. The murderer
of an empire should not be too severely criticised for crushing a gnat
while on the way about the business.[217]
 At the suggestion of Cortés, messengers were sent to all the
towns of the province, with orders to stop the payment of tribute and
to seize the collectors, but to spare their lives. Information was
likewise to be given to the neighboring nations, that all might prepare
to resist the force which Montezuma would probably send against
them. The Totonacs became wild with joy, and declared that the little
band who dare so brave Montezuma must be more than men.[218] To
Quiahuitzlan flocked chiefs and nobles from all parts, eager to
behold these beings, and to ascertain their own future course of
action. There were those among them still timid, who urged an
embassy to the king of kings, to beseech pardon before his army
should be upon them, slaying, enslaving, and laying waste; but
Cortés had already influence, was already strong enough to allay
their fears, and bring them all into allegiance to the Spanish
sovereign, exacting their oath before the notary Godoy to support
him with all their forces. Thus, by virtue of this man’s mind, many
battles were fought and won without the striking of a blow. Already
every Spaniard there was a sovereign, and the meanest soldier
among them a ruler of men.

FOOTNOTES
[176] Bernal Diaz, Hist. Verdad., 27. Herrera, dec. ii. lib. v. cap. vi., and others
refer to a similar number as being on the sick-list. Yellow fever, or vómito negro,
now the scourge of this and adjoining regions, appears to have developed with the
growth of European settlements, and Clavigero states that it was not known there
before 1725. Storia Mess., i. 117.

[177] ‘Hasta el parage del rio grande de Pánuco,’ Herrera, loc. cit. ‘Llegaron al
parage del rio grande, que es cerca de Panuco, adonde otra vez llegamos quãdo
lo del Capitá Juan de Grijalua.’ Bernal Diaz, Hist. Verdad., 27.

[178] ‘Doze dias que gastaron en este peligroso viage.’ Herrera, ubi sup. ‘Boluiose
al cabo de tres semanas ... le salian los de la costa, y se sacauã sangre, y se la
ofreciã en pajuelos por amistad a deidad.’ Gomara, Hist. Mex., 45.

[179] Ixtlilxochitl, Hist. Chich., 289. Quiauitl, rain or shower. Molina, Vocabulario.
Hence rainy place. Herrera calls it Chianhuitzlan, and this has been adopted by
Clavigero and most other writers. Prescott, Mex., i. 348, in a note holds up
Clavigero as a standard for the spelling of Mexican names, but he forgets that the
Italian form, as in the above case, would be misleading to English people.

[180] ‘Le llamarõ Vernal, por ser, como es, vn Cerro alto.’ Vetancvrt, Teatro Mex.,
pt. iii. 115. This may have been the origin of the name for the Spanish port, after
which Bernal Diaz says it was called. Hist. Verdad., 27. He applies the name to a
neighboring fort, spelling it in different ways, of which Solis, and consequently
Robertson, have selected the most unlikely. Gomara applies Aquiahuiztlan to the
harbor. Hist. Mex., 49.

[181] Bernal Diaz relates with great satisfaction how earnestly the speaker
pleaded for his vote, addressing him repeatedly as ‘your worship.’ One reason for
their earnestness, he implies, was the superiority in number of the Velazquez
party. ‘Los deudos, y amigos del Diego Velazquez, que eran muchos mas que
nosotros.’ Bernal Diaz, Hist. Verdad., 28-9. He forms this estimate most likely on
the proportion of leaders who from jealousy of Cortés, and for other reasons, were
addicted to Velazquez; but their men were probably more in favor of the general
than of the captains, to judge from the result. The sailors for obvious reasons may
have added to the Velazquez number, if not to their strength.

[182] ‘Se hazia mucho de rogar: y como dize el refran: Tu me lo ruegas, è yo me

lo quiero.’ Bernal Diaz, Hist. Verdad., 29.

[183] ‘Se puso vna picota en la plaça, y fuera de la Uilla vna horca.’ Bernal Diaz,
Hist. Verdad., 29; Vetancvrt, Teatro Mex., pt. iii. 116. This signifies that justice was
installed, its officers being next appointed.

[184] See note 23, chap. ii., this volume.

[185] ‘Nombrónos ... por alcaldes y regidores,’ say distinctly the appointed officers
themselves, in their letter to the emperor. Carta del Ayunt., in Cortés, Cartas, 20.
Bernal Diaz also indicates that Cortés made the appointments, although he at first
says, ‘hizimos Alcalde, y Regidores.’ Yet it is probable that the authorities were
confirmed formally as they were tacitly by the members of the expedition; for
Cortés, as he acknowledges, had no real authority to form a settlement.

[186] Testimonio de Montejo, in Col. Doc. Inéd., i. 489. ‘Â este Montejo porque no
estaua muy bien con Cortés, por metelle en los primeros, y principal, le mandò
nombrar por Alcalde.’ Bernal Diaz, Hist. Verdad., 29.
[187] Herrera, dec. ii. lib. v. cap. vii; Torquemada, i. 587. Bernal Diaz skips the
regidores. He thinks Villareal was not reappointed alférez because of a difficulty
with Cortés about a Cuban female. Hist. Verdad., 29; Vetancvrt, Teatro Mex., pt. iii.
116. Promotion and other causes gave speedy rise to changes among the
officials; Ávila, for instance, becoming alcalde mayor of New Spain, and Pedro de
Alvarado alcalde of the town.

[188] ‘Los q̄ para esto estauã auisados, sin dar lugar a que nadie tomasse la
mano. A vozes respõdierõ Cortes, Cortes.’ Herrera, dec. ii. lib. v. cap. vii. Bernal
Diaz merely intimates that a ‘packed’ meeting was held, by stating that the men of
Velazquez were furious on finding Cortés and the municipality elected, declaring,
‘q̄ no era bien hecho sin ser sabidores dello todos los Capitanes, y soldados.’ Hist.
Verdad., 29. This indicates also that many of the opponents must have been sent
away from camp for the occasion, perhaps on board the vessels. Montejo had
besides a number with him.

[189] ‘El qual como si nada supiera del caso, preguntò que era lo que mandauã.’
Having signified his acceptance, ‘Quisierõ besarle las manos por ello, como cosa
al bien de todos.’ Herrera, ubi sup.

[190] Gomara says frankly, ‘Cortés acepto el cargo de capitan general y justicia
mayor, a pocos ruegos, porq̄ no desseaua otra cosa mas por entonces.’ Hist.
Mex., 48. ‘Y no tuvo vergüenza Gomara,’ is Las Casas’ comment on the
admission. Hist. Ind., iv. 496. Bernal Diaz states that Cortés had made it a
condition, when the army pleaded to remain in the country, that he should receive
these offices: ‘Y lo peor de todo que le otorgamos que le dariamos el quinto del
oro.’ Hist. Verdad., 29. The letter of the ayuntamiento to the emperor sets forth
that they had represented to Cortés the injustice of trading gold for the sole benefit
of Velazquez and himself, and the necessity of securing the country and its wealth
for the king by founding a colony, which would also benefit them all in the
distribution of grants. They had accordingly urged him to stop barter as hitherto
carried on, and to found a town. It is then related how he yielded his own interest
in favor of king and community, and appointed them alcaldes and regidores. His
authority having in consequence become null, they appointed him in the king’s
name justicia, alcalde mayor, and captain, as the ablest and most loyal man, and
in consideration of his expenses and services so far. Carta 10 Jul., 1519, in
Cortés, Cartas, 19-21. Both Puertocarrero and Montejo confirm, in their testimony
before the authorities in Spain, that Cortés yielded to the general desire in doing
what he did. Col. Doc. Inéd., i. 489, 493-4. According to Gomara, Cortés makes a
trip into the neighboring country, and, finding how rich it is, he proposes to settle,
and to send the vessels to Cuba for more men wherewith to undertake the
conquest. This was approved: Cortés accordingly appointed the municipality, and
resigning the authority conferred by the Jeronimite Fathers and by Velazquez, as
now useless, these officers in turn elected him as their captain-general and justicia
mayor. The council proposed that, since the only provisions remaining belonged to
Cortés, he should take from the vessels what he needed for himself and servants,
and distribute the rest among the men at a just price, their joint credit being
pledged for payment. The fleets and outfit were to be accepted by the company in
the same way, the vessels to be used to carry provisions from the islands.
Scorning the idea of trading his possessions, Cortés surrendered the fleet and
effects for free distribution among his companions. Although liberal at all times
with them, this act was prompted by a desire to gain good-will. Hist. Mex., 46-8;
Herrera, dec. ii. lib. v. cap. vii.; Torquemada, i. 395, 587. Las Casas terms the
whole transaction, as related by Gomara and the ayuntamiento, a plot to defraud
Velazquez of his property and honors. Comparing the conduct of Cortés with that
of Velazquez against Colon, he finds the latter trifling and pardonable, while the
former was a barefaced robbery, resulting to Velazquez in loss of fortune, honors,
and life. The captains were accomplices. Hist. Ind., iv. 453, 494-6. Peter Martyr
gives the facts in brief without venturing an opinion, dec. v. cap. i.; Zumárraga, in
Ramirez, Doc., MS., 271-2. Cortés still held out the offer to furnish a vessel for
those who preferred to return to Cuba. As for Velazquez’ goods, they remained
safely in charge of the authorized agent, who also recovered the advances made
to members. See note 5, cap. v.

[191] As for the ayuntamiento, the passive recognition accorded to it, confirmed as
it was by the popularly elected general, may be regarded as sufficient. Spanish
municipal bodies possessed an extensive power conferred upon them during
successive reigns, chiefly with a view to afford the sovereign a support against the
assuming arrogance of the nobles. Their deliberations were respected; they could
appoint members, regulate their expenses, and even raise troops under their own
standard. As an instance of the consideration enjoyed by these troops, it is related
that Isabella the Catholic, when reviewing the army besieging Moclin, gave a
special salute of respect to the banner of Seville. Alaman, Disert., i. 612;
Zamacois, Hist. Méj., ii. 401-2.

[192] According to Gomara, Cortés enters the country with 400 men and all the
horses, before the election had been mooted. He describes the towns visited. Hist.
Mex., 46-8. Bernal Diaz pronounces the number of men and the time of entry
false. He also states that Montejo was bought over for 2000 pesos and more. Hist.
Verdad., 30.

[193] According to Bernal Diaz, Hist. Verdad., 30, gold played an important role in
effecting this change of allegiance, termed by Velazquez, in his Memorials to
Spain, a witchery. Solis sees nothing but the dignified yet clever traits of his hero
in all this.
[194] The soldiers called them Lopelucios, because their first inquiry was
Lopelucio, ‘chief,’ whom they wished to see. They had not ventured to approach
while the Mexicans were at the camp. Bernal Diaz, Hist. Verdad., 28.

[195] According to Gomara, followed by Herrera, the Totonacs were about twenty
in number, and came while Teuhtlile was absent on his second mission to Mexico,
without bringing a direct invitation to the Spaniards. Hist. Mex., 43-4.

[196] See Native Races, v. 475-7.

[197] Ixtlilxochitl, Hist. Chich., 288. This author is not very careful, however, and
his desire to court the Spaniards has no doubt led him to antedate the event.
Brasseur de Bourbourg accepts his story in full. Hist. Nat. Civ., iv. 87-8. A similar
revelation is claimed to have been made by two Aztec chiefs, Vamapantzin and
Atonaltzin, who came to the camp in the retinue of the first messengers from
Mexico. Descendants of the early Aztec kings, and discontented with the present
ruler, they promised Cortés to deliver certain native paintings foretelling the
coming of white men, to reveal the whereabouts of the imperial treasures, and to
plot an uprising among native states in aid of Spaniards. For these services they
received extensive grants after the conquest, including that of Ajapusco town. The
document recording this is a fragment which Zerecero parades in the opening part
of his Mem. Rev. Méx., 8-14, as a discovery by him in the Archivo General. It
pretends to be a title to Ajapusco lands, and contains on the first pages a letter
signed by Cortés at San Juan de Ulua, ‘20 March,’ 1519, as ‘Captain-general and
governor of these New Spains.’ Both the date and titles stamp the letter at least as
more than suspicious.

[198] The natives called it Citlaltepetl, starry mountain, with reference probably to
the sparks issuing from it. For height, etc., see Humboldt, Essai Pol., i. 273.
Brasseur de Bourbourg gives it the unlikely name of Ahuilizapan. Hist. Nat. Civ., iv.
99. The ending ‘pan’ implies a district or town, not a mountain. The description in
Carta del Ayunt., in Cortés, Cartas, 22-3, expresses doubt whether the whiteness
of the summit is due to snow or to clouds.

[199] Alvarado chased a deer, and succeeded in wounding it, but the next moment
the dense underbrush saved it from pursuit. The Carta del Ayunt., loc. cit., gives a
list of birds and quadrupeds; and a descriptive account, founded greatly on fancy,
however, is to be found in the curious Erasmi Francisci Guineischer und
Americanischer Blumen-Pusch, Nürnberg, 1669, wherein the compiler presents
under the title of a nosegay the ‘perfume of the wonders of strange animals, of
peculiar customs, and of the doings of the kings of Peru and Mexico.’ The first of
its two parts is devoted to the animal kingdom, with particular attention to the
marvellous, wherein credulity finds free play, as may be seen also in the flying
dragon of one of the crude engravings. In the second part, the aborigines, their
history, condition, and customs, are treated of, chiefly under Peru and Mexico,
chapter v. relating specially to the latter country. The narrative is quite superficial
and fragmentary; the ‘nosegay’ being not only common but faded, even the style
and type appearing antiquated for the date. Appended is Hemmersam, Guineische
und West-Indianische Reissbeschreibung, with addition by Dietherr, relating to
Africa and Brazil.

[200] ‘A tres leguas andadas llego al rio que parte termino con tierras de
Montecçuma.’ Gomara, Hist. Mex., 49; Torquemada, i. 395.

[201] Gomara, who ignores the previous night’s camp, states that the detour up
the river was made to avoid marshes. They saw only isolated huts, and fields, and
also about twenty natives, who were chased and caught. By them they were
guided to the hamlet. Hist. Mex., 49. They met one hundred men bringing them
food. Ixtlilxochitl, Hist. Chich., 289. Prescott allows the Spaniards to cross only a
tributary of la Antigua, and yet gain Cempoala. Mex., i. 339-40.

[202] Las Casas says 20,000 to 30,000. Hist. Ind., iv. 492. Torquemada varies in
different places from 25,000 to 150,000. The inhabitants were moved by Conde de
Monterey to a village in Jalapa district, and in Torquemada’s time less than half a
dozen remained. i. 397. ‘Dista de Vera-Cruz quatro leguas, y las ruínas dan á
entender la grandeza de la Ciudad; pero es distinto de otro Zempoal ... que dista
de este doze leguas.’ Lorenzana, in Cortés, Hist. N. España, 39. ‘Assentada en vn
llano entre dos rios.’ A league and a half from the sea. Herrera, dec. ii. lib. v. cap.
viii.

[203] ‘Cempoal, que yo intitulé Sevilla.’ Cortés, Cartas, 52. See Native Races, ii.
553-90; iv. 425-63, on Nahua architecture.

[204] Ixtlilxochitl, Hist. Chich., 294. Brasseur de Bourbourg, by a misconstruction

of his authorities, calls him Tlacochcalcatl. Codex Chimalpopoca, in Brasseur de
Bourbourg, Hist. Nat. Civ., iv. 93. See Sahagun, Hist. Conq., 16.

[205] ‘Una gordura monstruosa.... Fue necesario que Cortés detuviesse la risa de
los soldados.’ Solis, Hist. Mex., i. 175.

[206] ‘Se hizo el alojamento en el patio del Templo mayor.’ Herrera, dec. ii. lib. v.
cap. viii.

[207] For the reigns of their kings, see Torquemada, i. 278-80. Robertson, Hist.
Am., ii. 31, wrongly assumes the Totonacs to be a fierce people, different from
Cempoalans.
[208] ‘Toda aquella provincia de Cempoal y toda la sierra comarcana á la dicha
villa, que serán hasta cinquenta mil hombres de guerra y cincuenta villas y
fortalezas.’ Cortés, Cartas, 53. ‘Cien mil hõbres entre toda la liga.’ Gomara, Hist.
Mex., 57. ‘En aquellas tierras de la lengua de Totonaque, que eran mas de trienta
pueblos.’ Bernal Diaz, Hist. Verdad., 31. The province appears to have extended
from Rio de la Antigua to Huaxtecapan, in the north of Vera Cruz, and from the
sea to Zacatlan, in Puebla. Patiño assumes Mixquhuacan to have been the
capital, but this must be a mistake.

[209] Gomara relates that the army remained at Cempoala fifteen days, during
which frequent visits were made by the lord, Cortés paying the first return visit on
the third day, attended by fifty soldiers. He describes briefly the palace, and how
Cortés, seated by the side of the lord, on icpalli stools, now won his confidence
and adhesion. Hist. Mex., 51-3; Tapia, Rel., in Icazbalceta, Col. Doc., ii. 561;
Herrera, dec. ii. lib. v. cap. x. Bernal Diaz declares Gomara wrong, and insists that
they proceeded on their way the following day. Hist. Verdad., 31; Clavigero, Storia
Mess., iii. 26-7.

[210] For illustrated description of barranca ruins, see Native Races, iv. 439 et
seq.

[211] Ávila, who had command, was so strict as to lance Hernando Alonso de
Villanueva for not keeping in line. Lamed in the arm, he received the nickname of
el Manquillo. Bernal Diaz, Hist. Verdad., 31. The riders were obliged to retain their
seats, lest the Indians should suppose that the horses could be deterred by any
obstacles. Gomara, Hist. Mex., 53.

[212] Vetancvrt, Teatro Mex., pt. iii. 117. Others suppose that he came merely to
persuade the cacique to join Cortés. Clavigero, Storia Mess., iii. 27.

[213] Four men. Ixtlilxochitl, Hist. Chich., 289. ‘Twenty men,’ says Gomara, Hist.
Mex., 54, who does not refer to the arrival of Cempoala’s lord.

[214] ‘Monteçuma tenia pensamiẽnto, ... de nos auer todos á las manos, para que
hiziessemos generacion, y tambien para tener que sacrificar.’ Bernal Diaz, Hist.
Verdad., 28.

[215] ‘Carcerati nelle loro gabbie,’ is the way Clavigero puts it. Storia Mess., iii. 28.
One was even whipped for resisting.

[216] ‘Porque no se les fuesse alguno dellos á dar mandado á Mexico,’ is Bernal
Diaz’ reason for it. Hist. Verdad., 32.
[217] ‘Condotta artifiziosa, e doppia,’ etc., says Clavigero, Storia Mess., iii. 28,
while Solis lauds it as ‘Grande artífice de medir lo que disponia, con lo que
rezelaba: y prudente Capitan.’ Hist. Mex., i. 186.

[218] ‘Desde alli adelante nos llamaron Teules,’ says Bernal Diaz, with great
satisfaction. Hist Verdad., 32. ‘A los Españoles llamaron teteuh, que quiere decir
dioses, y los Españoles corrompiendo el vocablo decian teules, el cual nombre les
duró mas de tres años,’ till we stopped it, declaring that there was but one God.
Motolinia, Hist. Ind., i. 142-3. See note 16.
 CHAPTER X.
MULTIPLICATION OF PLOTS.

June-July, 1519.

Cortés, Diplomate and General—The Municipality of Villa Rica Located—

Excitement throughout Anáhuac—Montezuma Demoralized—Arrival of
the Released Collectors at the Mexican Capital—The Order for
Troops Countermanded—Montezuma Sends an Embassy to Cortés—
Chicomacatl Asks Aid against a Mexican Garrison—A Piece of
Pleasantry—The Velazquez Men Refuse to Accompany the Expedition—
Opportunity Offered them to Return to Cuba, which they Decline
through Shame—The Totonacs Rebuked—The Cempoala Brides—
Destruction of the Idols—Arrival at Villa Rica of Salcedo—Efforts of
Velazquez with the Emperor—Cortés Sends Messengers to Spain—
Velazquez Orders them Pursued—The Letters of Cortés—Audiencia of
the Emperor at Tordesillas.

Palamedes invented the game of chess while watching before

the gates of Troy; a tame business, truly, beside the achievements of
the heaven-born Achilles, the hero of the war. Yet chess remains,
while Achilles and his heaven have melted with the mists. Who shall
say, then, which was the greater, Cortés the soldier, or Cortés the
diplomate? But these were barbarians, one says, with whom the
shrewd Spaniards had to deal; they had neither horses, nor iron, nor
gunpowder, to aid them in their wars. Furthermore, they regarded the
strangers fully as demi-gods, probably as some of their own
wandering deities returned. True; but he makes a great mistake who
rates the Mexicans so far beneath Europeans in natural ability and
cunning. Montezuma lacked some of the murderous enginery that
Cortés had, and his inner life was of different dye; that was about all.
If any would place Cortés, his genius, and his exploits, below those
of the world’s greatest generals, because he warred on enemies
weaker than their enemies, we have only to consider the means at
his command, how much less was his force than theirs. What could
the Scipios or the Cæsars have done with half a thousand men; or
Washington, or Wellington, with five hundred against five hundred
thousand? Napoleon’s tactics were always to have at hand more
forces than the enemy. In this the Corsican displayed his astuteness.
But a keener astuteness was required by Cortés to conquer
thousands with hundreds and with tens. Perhaps Moltke, who, with a
stronger force, could wage successful war on France, perhaps he,
and a handful of his veterans, could land on the deadly shores of the
Mexican Gulf, and with Montezuma there, and all the interior as dark
to them as Erebus, by strategy and force of arms possess
themselves of the country. I doubt it exceedingly. I doubt if one in ten
of the greatest generals who ever lived would have achieved what
the base bastard Pizarro did in Peru. The very qualities which made
them great would have deterred them from anything which, viewed in
the light of experience and reason, was so wildly chimerical. Then
give these birds of prey their petting, I say; they deserve it. And be
fame or infamy immortal ever theirs! Lastly, if any still suspect the
genius of Cortés unable to cope with others than Indians, let them
observe how he handles his brother Spaniards.
It was about time the municipality should find anchorage; too
much travelling by a town of such immaculate conception, of so
much more than ordinary signification, were not seemly. Velazquez
would deride it; the emperor Charles would wonder at it: therefore
half a league below Quiahuiztlan, in the dimpled plain which
stretches from its base to the harbor of Bernal at present protecting
the ships, where bright waters commingling with soft round hills and
rugged promontories were lifted into ethereal heights by the misted
sunshine, the whole scene falling on the senses like a vision, and not
like tame reality, there they chose a site for the Villa Rica,[219] and
drew a plan of the town, distributed lots, laid the foundations for forts
and batteries, granary, church, town-hall, and other buildings, which
were constructed chiefly of adobe, the whole being inclosed by a
strong stockade. To encourage alike men and officers to push the
work, Cortés himself set the example in preparing for the structures,
and in carrying earth and stones. The natives also lent their aid, and
in a few weeks the town stood ready, furnishing a good shipping
depot, a fortress for the control of the interior, a starting-point for
operations, an asylum for the sick and wounded, and a refuge for the
army in case of need.
Great was the excitement in Anáhuac and the regions round
about over the revolt of the Totonacs and the attitude assumed by
the Spaniards; and while hope swelled the breast of subjected
peoples, the Aztec nobles, seeing revolution in the signs of the
times, began to look to the safety of their families and estates.[220]
To Montezuma the seizure of his collectors was an outrage on the
sacredness of his majesty, and a slur on his power, which the council
declared must be punished in the most prompt and effective manner,
lest other provinces should follow the example. And yet the monarch
had no stomach for the business. Ofttimes since these accursed
strangers touched his shores would he willingly have resigned that
which he above all feared to lose, his sceptre and his life; then again,
as appetite returned and existence was loaded with affluent
pleasure, he sighed to taste the sweets of power a little longer. He
was becoming sadly pusillanimous, an object of contempt before his
gods, his nobles, and himself. It seemed to him as if the heavens
had fallen on him and held him inexorably to earth. There was no
escape. There were none to pity. He was alone. His very gods were
recreant, cowering before the approach of other gods. Repressing
his misgivings as best he might, he issued orders for an immediate
descent of the army on the offenders. Let the mettle of these beings
be proven, and let them live or die with their Totonac allies. To this
end let levies be made of men and money on a long-suffering
people, whose murmurs shall be drowned in the groans of fresh
victims on the sacrificial altar of the war god.[221]
See now how powerfully had wagged that little forked tongue of
Cortés! See how those gentle whisperings that night at Quiahuiztlan,
those soft dissemblings breathed into the ears of two poor captives
—see how they shot forth like winged swords to stop an army on the
point of marching to its slaughters! Here, as in scores of other
instances, Cortés’ shrewdness saved him from disaster.
For in the midst of the warlike preparations arrived the two
released collectors, and their presentation of the magnanimity of the
white chief, of his friendly conduct and warm assurances, materially
changed the aspect of affairs. There was no alliance; there was no
rebellion; the Totonacs dared not rebel without foreign support; with
them Montezuma would settle presently. And with no little alacrity did
he countermand the order for troops, and send an embassy to
Cortés. Thus through the vacillating policy which now possessed the
Mexican monarch was lost the opportunity to strike the enemy
perhaps a fatal blow; and thus by that far off impalpable breath was
fought and won another battle, this time vanquishing the king of
kings himself, with his hundred thousand men.

The embassy sent comprised two of Montezuma’s nephews,[222]

accompanied by four old and honorable caciques. They were to
express the monarch’s thanks to the Spaniards, and to remonstrate
against the revolt encouraged by their presence. He had become
assured that they were of the race predicted by his forefathers, and
consequently of his own lineage; out of regard for them, as guests of
the revolted people, he would withhold present chastisement. A gift
of robes and feather-work, and gold worth two thousand castellanos,
accompanied the message.[223]
We cannot blame Cortés if his heart danced to its own music as
he assured the envoys that he and all his people continued devoted
to their master; in proof of which he straightway produced the other
three collectors, safe, sound, and arrayed in their new attire.[224]
Nevertheless, he could but express displeasure at the abrupt
departure of the Mexicans from the former camp. This act had forced
him to seek hospitality at the hand of the Totonacs, and for their kind
reception of him they deserved to be forgiven. Further than this, they
had rendered the Spaniards great benefits, and should not be
expected to serve two masters, or to pay double tribute; for the rest,
Cortés himself would soon come to Mexico and arrange everything.
The envoys replied that their sovereign was too engrossed in serious
affairs to be able as yet to appoint an interview. “Adieu,” they
concluded, “and beware of the Totonacs, for they are a treacherous
race.” Not to create needless alarm, nor leave on the minds of the
envoys at their departure unpleasant impressions concerning his
projects, Cortés entertained them hospitably, astonished them with
cavalry and other exhibitions, and gratified them with presents. The
effect of this visit was to raise still higher the Spaniards in the
estimation not only of the Aztecs, but of the Totonacs, who with
amazement saw come from the dread Montezuma, instead of a
scourging army, this high embassy of peace. “It must be so,” they
said among themselves, “that the Mexican monarch stands in awe of
the strangers.”
Not long after, Chicomacatl came to Cortés asking aid against a
Mexican garrison, said to be committing ravages at Tizapantzinco,
[225]
some eight leagues from Cempoala. Cortés was in a merry
mood at the moment; he could see the important progress he was
making toward the consummation of his desires, though the men of
Velazquez could not—at least they would admit of nothing honorable
or beneficial to Cortés, and they continued to make much trouble.
Here was an opportunity to test the credulity of these heathen, how
far they might be brought to believe in the supernatural power of the
Spaniards. Among the musketeers was an old Biscayan from the
Italian wars, Heredia by name, the ugliest man in the army, uglier
than Thersites, who could not find his fellow among all the Greeks
that came to Troy. Lame in one foot, blind in one eye, bow-legged,
with a slashed face, bushy-bearded as a lion, this musketeer had
also the heart of a lion, and would march straight into the mouth of
Popocatepetl, without a question, at the order of his general. Calling
the man to him, Cortés said: “The Greeks worshipped beauty, as
thou knowest, good Heredia, but these Americans seem to deify
deformity, which in thee reaches its uttermost. Thou art hideous
enough at once to awe and enravish the Aztecs, whose Pantheon
cannot produce thine equal. Go to them, Heredia; bend fiercely on
them thine only eye, walk bravely before them, flash thy sword, and
thunder a little with thy gun, and thou shalt at once command a
hundred sacrifices.” Then to the Totonac chief: “This brother of mine
is all sufficient to aid thee in thy purpose. Go, and behold the
Culhuas will vanish at thy presence.” And they went; an obedience
significant of the estimation in which Cortés was then held, both by
his own men and by the natives.
They had not proceeded far when Cortés sent and recalled
them, saying that he desired to examine the country, and would
accompany them. Tlamamas would be required to carry the guns
and baggage, and they would set out the next day. At the last
moment seven of the Velazquez faction refused to go, on the ground
of ill health. Then others of their number spoke, condemning the
rashness of the present proceeding, and desiring to return to Cuba.
Cortés told them they could go, and after chiding them for neglect of
duty he ordered prepared a vessel, which should be placed at their
service. As they were about to embark, a deputation appeared to
protest against permitting any to depart, as a proceeding prejudicial
to the service of God, and of the king. “Men who at such a moment,
and under such circumstances, desert their flag deserve death.”
These were the words of Cortés put into the mouth of the speaker.
Of course the order concerning the vessel was recalled, and the men
of Velazquez were losers by the affair.[226]
The expedition, composed of four hundred soldiers, with
fourteen horses, and the necessary carriers, then set off for
Cempoala, where they were joined by four companies of two
thousand warriors. Two days’ march brought them close to
Tizapantzinco, and the following morning they entered the plain at
the foot of the fortress, which was strongly situated on a high rock
bordered by a stream. Here stood the people prepared to receive
them; but scarcely had the cavalry come in sight when they turned to
seek refuge within the fort. The horsemen cut off their retreat in that
direction, however, and leaving them, began the ascent. Eight chiefs
and priests thereupon came forth wailing, and informed the
Spaniards that the Mexican garrison had left at the first uprising of
the Totonacs, and that the Cempoalans were taking advantage of
this and of the Spanish alliance to enforce the settlement of a long-
standing boundary dispute. They begged that the army would not
advance. Cortés at once gave orders to restrain the Cempoalans,
who were already plundering. Their captains were severely
reprimanded for want of candor as to the real object of the
expedition, and were ordered to restore the effects and captives
taken. This strictness was by no means confined to them, for a
soldier named Mora, caught by the general in the act of stealing two
fowls, was ordered hanged. Alvarado, however, cut him down in time
to save his life, probably at the secret intimation of Cortés, who,