Wednesday, May 10, 2006
One of the great chestnuts of contract law is Kirksey v. Kirksey, the story of the Alabama widder woman and her brood who are invited to come and live with her dead husband's brother. When they're subsequently evicted, the question -- you all remember -- is whether the brother's invitation was a contract offer or a gift of shelter. Few cases have raised more speculation. Why did the brother want his sister-in-law there? Was he just looking out for the kin of his beloved sibling? Seeking free labor? Looking for a bedmate?
The answer, it turns out, is "none of the above." In a wonderful recreation of the Kirksey story -- which turns out to be far more complicated than you'd expect -- Texas Tech's William D. Casto (left)and South Texas's Val D. Ricks (right) recreate what was really happening in backwoods Alabama at the time. The answer turns out to be far more interesting than simple benevolence or even lust. The paper is 'Dear Sister Antillico . . .': The Story of Kirksey v. Kirksey, and it's out now in the Georgetown Law Journal. Here's the abstract:
Kirksey v. Kirksey (Ala. 1845) is one of the most famous cases in American contract law. The simple, six-line opinion held, over a dissent, that only a promise of a conditional gift occurred, and was unenforceable. Yet the case is a puzzle.
First, its facts raise more questions than they answer. Countless Contracts teachers ask -- Why did Isaac Kirksey invite his sister-in-law “Antillico” (an aberrant spelling of Angelico, we discovered) down to Talladega? Was he actually bargaining for something? How many children did Angelico bring? Did Isaac mean for the children to work on his plantation (did he bargain for their labor)? Did Isaac and Angelico have an affair (was the consideration meretricious)? Why did Isaac move to evict his sister-in-law? Was she unbearable as a neighbor? Why did she sue? What result was she seeking? What evidence was presented at trial? Did she have evidence of consideration other than her trip to Talladega? Was her lawyer incompetent? Did the law of the time support Angelico’s legal position, or is the opinion’s conclusion based on something other than legal authority? Did the appellate court usurp the jury’s factfinding role? Why did the dissenting judge write the majority opinion? Whatever happened to Angelico and her small children? These questions serve pedagogy. Our informal poll of contract law teachers revealed a long list of objectives for which professors use Kirksey. Kirksey’s ambiguities leave the professor free to take the case where she will.
Second, Kirksey is so ordinary -- why is it taught at all? It announces no new doctrine. It explains no doctrine. Its author’s style is not impressive, and his reputation is obscure. Today courts might reach the opposite result. Few courts have cited Kirksey, and none since 1949.
We resolve these puzzles. First, we answer all the questions raised by the facts. We were surprised by the answers and suggest that no one who has taught the case has had any idea what actually happened. Second, we explain how Kirksey gained fame. Briefly, Williston changed his mind about the case (“right” to “wrong”), and in the process talked about Kirksey so much that it became embedded in his teaching, his treatise, his mind, and his students’ minds -- until the case became one of contract law teaching’s primary sources. Ironically, Williston’s change of mind, the reason for the case’s rise to fame (the second puzzle), was made possible by the case’s ambiguity (the first).