E.L. James's novel 50 Shades of Grey has taken the U.S. by storm and its erotic nature, including a steamy BDSM contract, has caused quite the buzz.
Love it or hate it, the book is big news, selling millions of copies.
If you haven't read it yet, there might be some spoilers below. But if you have read it, you must have been curious about the contract that Christian Grey offers to the book's narrator, Anastasia Steele.
The contract sets out terms for a BDSM sexual arrangement between Grey and Steele which made us wonder: would it survive in court?
Consideration is a legal term for the idea that for people to honor a contract, both parties must promise something of value when making the contract.
Grey makes an offer by asking Steele to sign the contract and there is consideration. If they agree Grey will provide care and training to Steele and Steele will make herself available to Grey every weekend.
Oh right, and she'll offer Grey any pleasure he desires without hesitation and he, in exchange, will refrain from anything that endangers her health or leaves a permanent mark.
Typical stuff? Not really.
But none of that matters since Steele doesn't actually sign, there's no acceptance. No contract.
Grey does admit that other women signed the contract. But would anyone have been able to enforce it?
Contracts that violate public policy will not be upheld in court and that includes contracts for sex. As a society we don't endorse using sex as a tradable good (i.e. laws against prostitution) so contracts can't use sex as consideration.
Much of the contract does involve sex. It includes a list of sexual activities that Steele will or won't participate in and continually refers to her as The Submissive while Grey is The Dominant. Those terms are pretty commonly linked to sexual relationships which means they can't be part of the contract.
It's a tossup what would happen if the issue ever came to court. In cases where an otherwise enforceable contract contains unenforceable clauses, a court generally has two options: strike out any problematic language or throw out the contract entirely.
Steele never does sign the contract but that doesn't make it any less important to 50 Shades of Grey. Still, let's put that contract on the do-not-try-at-home list and find a professional to write up your deals.