In your first year of law school, you will take Contracts. In Contracts, you will hear “The Brooklyn Bridge Hypo.” It goes like this: A says to B, “I will give you $100 if you walk across the Brooklyn Bridge.”
Students are then asked whether and when a contract is formed. Is A’s statement to B an offer? If so, when does B accept it? When he says he will walk across the Brooklyn Bridge, when he begins walking across the Brooklyn Bridge, or when he completes the walk across the Brooklyn Bridge?
The answer is that this is an offer than can only be accepted by performance—it is a unilateral contract. The offeror is bargaining for performance, not for an agreement to a set of terms (as is the case with a bilateral contract).
A’s offer is an option contract. Once B has begun performance, A’s offer is irrevocable until B has had a reasonable time to complete his walk.
A may not now rush after B and tell him the deal is off. Nor may A push B off the Bridge in an effort to thwart his acceptance of the offer. Once B began to walk, there is nothing A could do to rescind the offer. He must wait for B to finish the walk, and then he must hand over the Benjamin Franklin. If he does not, he is in breach of the contract.
Does this sound familiar?
The Brooklyn Bridge Hypo is eerily similar to the situation I am studying for my Senior Paper–that of the Promise by BJU to support its retirees in their old age: A said, “If you work here throughout your career, we will provide food, housing, health care, and a small retirement salary.”
Hearing this, a great many Bs stepped onto the Bridge. They began walking. They walked for years. They walked for decades.
In 1989, because of a tax situation, A stepped onto the Bridge and ran as fast as he could up to where the Bs were trudging away. “Just so you know,” A gasped, “I’ve changed my offer! You’ll get less and less with each step you take, but don’t worry, because I’m stashing pennies over here in a can for you!”
The Bs nodded or didn’t nod, but continued to walk. They walked for years or decades more. Some finished their walk, only to find that A meant it when he said he wasn’t going to pay out, but over here in this can there were a few little discounts B could take advantage of.
“After all,” A said, “You have a rich uncle.
“His name is Sam. He likes to give checks to old people. He’ll pay some of your medicals, too, so go ask him, because what you are getting from my offer is a discount in my dining room.”
A goes his way, stopping perhaps to admire his gallery of half a thousand paintings worth millions of dollars.
Now, this all sounds very dramatic, doesn’t it? Like I’m puffing it up to get an emotional response, right? Like I’m making more of it than I ought to make?
Well, I don’t know. It would take an actual lawyer–not a law student like me–or a team of lawyers to untangle this mess. You see, suppose a lawsuit were to be filed. The other side would have defenses.
Here are some:
1. The faithful walking Bs ratified the changes to the offer. This is an interesting idea. Except that the offer is irrevocable while the performance is ongoing.
2. The Brooklyn Bridge Hypo doesn’t apply. Possibly a good lawyer will be able to argue that my example is so much horse manure. That’s why you need good lawyers on your side.
3. If you didn’t like the changes, you should have spoken up. Riiiiiiiiiiiiiigghhhhhttttttt. Like anyone who speaks up isn’t going to be shoved off the Bridge with nary a “Watch out! It’s cold when you hit!”
4. We can’t afford it–there are too many old people and medicals are so expensive these days! We could never have foreseen the costs! Well, I’ll grant you this, but see the notes about the Art Gallery above, and wonder why it’s now a wholly separate entity. Wonder about that deeply. The M&G aside, there was a recent case where GM found itself in this exact situation–they’d promised their retirees too much: they simply couldn’t afford to pay out without shutting down the whole company.
In the GM case, the courts allowed them to modify the terms of the contract so that the company wouldn’t have to close. At issue was whether it was in the public interest for GM to close. One wonders whether a court would find that BJU’s continued existence is so much in the public interest that the promise to the retirees should be modified. This is for the court to determine.
5. You shouldn’t sue us; we’re Christians. Well then, let’s have a sit down for some arbitration. Let’s hash this out with trained lawyers. Let’s get to the bottom of what was promised, what is needed, what is happening now, what is going on? Let’s find out if anyone is “underserved.” Let’s find out what happened to the Forsake Me Not endowment, the Diamond Jubilee fund, and any other funds. Let’s find out what Junior meant when he said the Gallery was “for a rainy day.”
6. You should have planned better. Certainly, some could have planned better. But others were told: “You can’t work another job” during the years they would have been most productive. Others were offered better jobs, but believed in A’s promise. They relied to their detriment on the promise that they would be taken care of.
(Detrimental reliance is another issue, to be discussed later, and it has to do with contracts that are unsupported by consideration. I would argue that the annual agreements to work-and-be-paid-for-it are separate from the trans-decade offer of care at the end of a career. Following that theory, we need to talk about the hypo where Uncle Albert tells Niece Nettie: “if you move down here and take care of me for the rest of my life, I will leave you the farm.” If Nettie moves down in reliance on the promise and Uncle Albert dies three days later, she still gets the farm. But again, that’s another discussion.)
That some people’s homes increased in value and others inherited enough to live on and others saved each and every penny of their “part-time mother” wife’s salary has not one thing to do with the fact that at the end of B’s walk, when he steps off that Bridge, A needs to reach into his wallet and pull out a nice clean one-hundred dollar bill.
The problem is that people are afraid. How many people I have heard from who have said, “Please don’t use my name–I need my job!” They know and we all know that anyone who complains will be pushed off the Bridge. They know and we all know that were a large group of faculty and staff to band together to get answers, they would all be pushed off en masse. We all know the atmosphere as to questions and internal complaints is hostile.
This man is not living on social security. This man takes trips to Italy.
That’s why it is very important, and probably inevitable, that outsiders be invited in to make some important determinations.
Still just thinking, studying, reading. More to come.
Write me your thoughts at firstname.lastname@example.org. For your security, I am printing off the emails, cutting off all identifying information, and then deleting the mail from my accounts. All that is left are unidentifiable letters in a file folder deep in the back of my closet. Isn’t it sad we have to be this careful? Doesn’t that bother you?
(Real lawyers–I’d love to hear your voice behind me saying, “this is the way, walk ye in it.”)