In Extremis: Breach of Promise & Contracting in Chilling Adventures of Sabrina

Disclaimer: For fear of being excommunicated from the Church of Satan, I cannot allow you to take this piece of legal entertainment as advice. Please seek independent evil/legal consul prior to meeting a goat man at the Mississippi crossroads. This review contains spoilers for the episode and perhaps the series, so if you are clairvoyant you already know what it is, and if not, then your tea leaves are just antioxidants.




I was born in the 1990s when Michael Jordan played baseball and cosmic preserves allowed a wascally wabbit to dunk on the MONSTARS. No this is not an article about a horror reboot of Space Jam (1996) … but now I want that, and the tagline could be: In Space No One Can Hear You JAM!!!

This is about a comic character with a with a live action tv series in 1996 (same year as Space Jam), as well as animated shows in 1970 & 1999, and who first appeared in Archie’s Madhouse #22 in 1962.  I am talking of course about Sabrina the Teenage Witch. When I hear that name, I think of a delightful talking cat named Salem, two silly meddling aunts, and a more “innocent” time (ignoring all world events that year). So logically when reinvigorating the series, you make it bleak, take away the cat’s ability to speak, and introduce a recurring bit in which one of the aunts hits the other over the head with a shovel and resurrects her like if Lars Von Trier made the Looney Tunes. Thanks Warner Brothers… FOR MAKING SPACE JAM!!!*

But you came for a trial and the latest series iteration of the character has one for you. In episode 3 of Chilling Adventures of Sabrina, entitled “The Trial of Sabrina Spellman,” the titular heroine finds out her father sold her soul to the devil in exchange for marrying a mortal woman.

We start with some problems: can a parent contract on behalf of an infant?** 

The age of majority in Massachusetts is 18, and so Sabrina is a minor. Generally, under the common law, a minor who enters into a contract may void the contract. "Voiding" a contract is like breaking a contract; if a contract is voided you will no longer be held to its terms. You cannot however pick and choose parts of the contract to void; it is all or nothing. There are exceptions to this rule. Minors generally cannot "void" any contract that involves a "necessity".***



The purpose of the policy permitting minors to void their contracts is "to afford protection to minors from their own improvidence and want of sound judgment."**** This purpose aligns with common sense and experience and is not defeated by permitting parents to exercise their own wisdom and sound judgment on behalf of their minor children.***** Moreover, the common law in Massachusetts presumes that fit parents act in furtherance of the welfare and best interests of their children, and with respect to matters relating to their care, custody, and upbringing have a fundamental right to make those decisions for them. ******

So the Devil could argue that it is presumed that Sabrina’s father was acting in her best interest which she would have to disprove. Now a court may allow a parent to raise their child as a Satanist, but even an evil court would have a hard time saying that selling a child’s soul when they are a baby is in the child’s best interest, and since she did not receive any necessity from the deal (like food, shelter, education, or money in exchange for labour) the contract is likely voidable by Sabrina through her actions at trial.  

Further, if a contract is against the interests of the child, a court may consider it void ab initio (a.k.a. invalid at the moment it was created). In that case the child would not need to go to court and ask for the contract to be voided, it happens automatically. In this case the court, since they are evil, may consider Sabrina having her soul sold a good thing, but it is clearly not in her interest – her father made the contract for his own selfish gains. Thus, the contract may be void before Sabrina even has to go to court.
 
At the end of the episode Daniel Webster (a real person, and Sabrina’s lawyer in this episode), is successful in arguing that because Sabrina’s mom sold her soul to G-D (through a baptism), before the ritual to the Devil, the first contract stands. This is the same plot as a segment in the Simpsons Treehouse of Horror IV: "The Devil and Homer Simpson" (1993), where Homer sells his soul for a donut and Marge asserts claim over Homer’s soul based upon their marriage, i.e. Simpsons Did It. This argument is valid as you can only transfer goods by contract that you have an inalienable right to own; since the soul already belongs to another party (G-D) you cannot sell it to another (the Devil). So luckily Sabrina got off the hook in a much more convoluted way that ended with Hilda being excommunicated from the Church of Night (the satanic church on the show).

Pictured Above: A much better Sabrina Trial

Please check out the work of UK Lawyer @shonfaye on twitter, who wrote a legal analysis of the Ursula v Ariel contract in the Little Mermaid. It does a much better job at explaining the gaping legal holes in a child contracting with the “devil.”*******


Breach of Promise

The second issue of the episode is that the devil is charging Sabrina with breach of promise. In the particular legal system of the show you are guilty until proven innocent… so very cute. So the burden would be on Sabrina to prove beyond a reasonable doubt that she did not commit herself to the devil.

The problem is that breach of contract and breach of promise are not crimes; and you cannot plead guilty in a civil suit. Let’s examine breach of promise historically to show why it would not make sense as a criminal charge, and why Sabrina would have many defences against it that were not explored.

“Breach of Promise” is an outdated legal action that was brought by a person (historically a woman) to recover damages when a person promised to marry and then failed to carry out that promise or commitment. The idea was to remedy the financial harms of a broken engagement; eventually, the action was redefined over time as centering around financially compensating emotional wounds. The remedy was known as heart-balm… which sounds simultaneously like an Alternative Medicine and a Hot Topic product.

Breach of Promise became sensationalized by newspapers in the 1920s-1930s, who reported on “the Heartbalm Rackett” of women that would allege promises of marriage and receive large awards of damages – between $100,000 and $450,000.********

The Honolulu Advertiser (Honolulu, Hawaii), Sunday, Apr 14, 1935

The Heartbalm Law of Massachusetts was passed following the first of such laws passed in Indiana in 1935. Section 47A states: 

  • Breach of contract to marry shall not constitute an injury or wrong recognized by law, and no action, suit or proceeding shall be maintained therefor. **********

Under the common law promises to marry made by minors are voidable at the option of the minor.*********** A minor may sue on such a promise but may not be sued, even if he or she has ratified the promise after coming of age. On reaching the age of majority a new and independent promise to marry the other person will be binding. This means that 16-year-old Sabrina Spellman could simply void/invalidate the commitment or promise to marry, and never have to worry about marrying Black Phillip, till she decides she wants to at the proper legal age in hell… which even in hell likely is not a baby.

Furthermore, you cannot get specific performance from a Breach of Promise suit — the court cannot order a marriage to happen. The devil can only get monetary damages from Sabrina and her caregivers, Zelda and Hilda. Even if it were a criminal matter, Sabrina could have met her burden way before the climax of the episode. The Devil will not be getting his apology or his 333 years in the pit at his demands. Free Advice for the Prince of Darkness; stop trying to undermine women’s autonomy and consent to get your own pleasures and that goes for any swimmer, judge, or president as well.

Another problem I have is that once he is beaten, the Devil opens his chambers to settle the matter. The prosecutor and Daniel Webster then go into the Devil’s chambers and make a deal where Sabrina must attend the Academy for the Unseen Arts but may also attend her regular high school. Sabrina finds out the deal Daniel Webster made on her behalf during the “verdict” given by the Dishonourable Court (it was their joke, not mine).



This is completely wrong. TV Shows seem to forget that a lawyer cannot act without being instructed (*cough* every scene in the Suits tv series). You also must bring any settlement offer to your client prior to settling, unless you have power of attorney (authorization to make legal decisions on behalf of someone). Hilda, Zelda, and likely Sabrina would need to agree to the terms of the new deal in advance. I know that this would be bad storytelling, but I still pointed out this legal faux pas to my frustrated partner upon first viewing.

I would give this episode a 2/10 for legal realism, and a 4/10 for enjoyability. I am not going to address the entire series at this time, and the rest may make up for this one isolated episode. If you like the show then good, no need to curse at me! (witch puns)
 



* Note that the show was moved from CW (Owned by Warner Brothers) to Netflix.
** I did not have space to write about whether you could actually sell your soul, although the website Ebay has an interesting policy on the matter you should read: Owen Thomas, Turns Out You’re Not Allowed to Sell Your Soul on Ebay. July 6th, 2012, accessed November 20th, 2018. The policy dates back to 2002 or so, and is premised on the argument that if souls are not real you cannot sell them, and if they are, then it would violate their policy preventing sale of human parts and remain. The devil’s policy would definitely allow it. I also did not have space to write about the jurisdiction of whether it should be a mortal or a daemonic court. This was examined in the original short story, “The Devil and Daniel Webster” by Stephen Vincent Benét, where the Devil claims to be an American citizen as he was present at all of the travesties of American history. This case was humorously cited as precedent in a case where a man tried to sue the devil, where the court dismissed the action for lack of jurisdiction over the defendant (the Devil): UNITED STATES ex rel. Gerald MAYO v. SATAN AND HIS STAFF, 54 F.R.D. 282 (1971).
*** I am using Massachusetts law, as the Spellmans have traditionally lived in Greendale, a suburb in Massachusetts; Slaney v. Westwood Auto, Inc., 366 Mass. 688 (1975); and Carpenter v. Grow, 247 Mass. 133 (1923).
**** Frye v. Yasi, 327 Mass. 724, 728 (1951); https://statelaws.findlaw.com/massachusetts-law/massachusetts-legal-ages-laws.html
***** Parham v. J.R., 442 U.S. 584, 602 (1979) ("The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions"). See 1 W. Blackstone, Commentaries 452 (9th ed. 1783) (minor's consent to marriage void unless accompanied by parental consent; one of many means by which parents can protect children "from the snares of artful and designing persons").
****** Petition of the Dep't of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587-589 (1981); Sayre v. Aisner, 51 Mass. App. Ct. 794, 799 n.8 (2001); See Parham v. J.R., supra at 603 (parents can and must make judgments and decisions regarding risks to their children).
******* Julia Reinstein, “This Legal Analysis of the Little Mermaid is Kind of Amazing

******** This is an article that gives a good history of heart-balm and an interesting perspective on whether the laws abolishing heart-balm was a positive move forward in feminism and a woman making her own choices for work and finances, despite some misogynists praising the law as preventing women from fraudulently acquiring rich men’s money.
********* Ibid.
********** General Laws of the State of Massachusetts, Part II, Title III, Section 47A.
*********** Law Reform Commission of Ireland, "The Law Relating to Breach of Promise of Marriage" Working Papers. 4. Dublin: Law Reform Commission, 1978.

Adam

Contributor/Actual Lawyer

Adam is a lawyer from Nova Scotia, Canada... that place above Maine beside Anne of Green Gables’ house. He hosts a deplorable show examining the law in sci-fi films called the "Space Lawyers Podcast". Adam enjoys the finer things in life such as "so bad they are good" films (see Leprechaun 4: In Space), pestiferous puns, and his collection of over 365 bowties.