When people fall in love and decide to marry, the expectation is nearly always that love and marriage and the happiness they bring will last; as the vows say, till death do us part. Only the most cynical among us would think, walking down the aisle, that if things don’t work out, “We can always split.”
But the divorce rate in the United States is half the marriage rate, and that does not bode well for this cherished institution.
While some divorces are clearly justified by physical or emotional abuse, intolerable infidelity, addictive behavior or irreconcilable incompatibility, experts say many severed marriages seem to have just withered and died from a lack of effort to keep the embers of love alive.
Jane Brody speaks about love and marriage.
I say “embers” because the flame of love — the feelings that prompt people to forget all their troubles and fly down the street with wings on their feet — does not last very long, and cannot if lovers are ever to get anything done. The passion ignited by a new love inevitably cools and must mature into the caring, compassion and companionship that can sustain a long-lasting relationship.
Studies by Richard E. Lucas and colleagues at Michigan State University have shown that the happiness boost that occurs with marriage lasts only about two years, after which people revert to their former levels of happiness — or unhappiness.
Infatuation and passion have even shorter life spans, and must evolve into “companionate love, composed more of deep affection, connection and liking,” according to Sonja Lyubomirsky, a professor of psychology at the University of California, Riverside.
In her new book, “The Myths of Happiness,” Dr. Lyubomirsky describes a slew of research-tested actions and words that can do wonders to keep love alive.
She points out that the natural human tendency to become “habituated” to positive circumstances — to get so used to things that make us feel good that they no longer do — can be the death knell of marital happiness. Psychologists call it “hedonic adaptation”: things that thrill us tend to be short-lived.
So Dr. Lyubomirsky’s first suggestion is to adopt measures to avert, or at least slow down, the habituation that can lead to boredom and marital dissatisfaction. While her methods may seem obvious, many married couples forget to put them into practice.
Building Companionship
Steps to slow, prevent or counteract hedonic adaptation and rescue a so-so marriage should be taken long before the union is in trouble, Dr. Lyubomirsky urges. Her recommended strategies include making time to be together and talk, truly listening to each other, and expressing admiration and affection.
Dr. Lyubomirsky emphasizes “the importance of appreciation”: count your blessings and resist taking a spouse for granted. Routinely remind yourself and your partner of what you appreciate about the person and the marriage.
Also important is variety, which is innately stimulating and rewarding and “critical if we want to stave off adaptation,” the psychologist writes. Mix things up, be spontaneous, change how you do things with your partner to keep your relationship “fresh, meaningful and positive.”
Novelty is a powerful aphrodisiac that can also enhance the pleasures of marital sex. But Dr. Lyubomirsky admits that “science has uncovered precious little about how to sustain passionate love.” She likens its decline to growing up or growing old, “simply part of being human.”
Variety goes hand in hand with another tip: surprise. With time, partners tend to get to know each other all too well, and they can fall into routines that become stultifying. Shake it up. Try new activities, new places, new friends. Learn new skills together.
Although I’ve been a “water bug” my whole life, my husband could swim only as far as he could hold his breath. We were able to enjoy the water together when we both learned to kayak.
“A pat on the back, a squeeze of the hand, a hug, an arm around the shoulder — the science of touch suggests that it can save a so-so marriage,” Dr. Lyubomirsky writes. “Introducing more (nonsexual) touching and affection on a daily basis will go a long way in rekindling the warmth and tenderness.”
She suggests “increasing the amount of physical contact in your relationship by a set amount each week” within the comfort level of the spouses’ personalities, backgrounds and openness to nonsexual touch.
Positive Energy
A long-married friend recently told me that her husband said he missed being touched and hugged. And she wondered what the two of them would talk about when they became empty-nesters. Now is the time, dear friend, to work on a more mutually rewarding relationship if you want your marriage to last.
Support your partner’s values, goals and dreams, and greet his or her good news with interest and delight. My husband’s passion lay in writing for the musical theater. When his day job moved to a different city, I suggested that rather than looking for a new one, he pursue his dream. It never became monetarily rewarding, but his vocation fulfilled him and thrilled me. He left a legacy of marvelous lyrics for more than a dozen shows.
Even a marriage that has been marred by negative, angry or hurtful remarks can often be rescued by filling the home with words and actions that elicit positive emotions, psychology research has shown.
According to studies by Barbara L. Fredrickson, a social psychologist and professor at the University of North Carolina at Chapel Hill, a flourishing relationship needs three times as many positive emotions as negative ones. In her forthcoming book, “Love 2.0,” Dr. Fredrickson says that cultivating positive energy everyday “motivates us to reach out for a hug more often or share and inspiring or silly idea or image.”
Dr. Lyubomirsky reports that happily married couples average five positive verbal and emotional expressions toward one another for every negative expression, but “very unhappy couples display ratios of less than one to one.”
To help get your relationship on a happier track, the psychologist suggests keeping a diary of positive and negative events that occur between you and your partner, and striving to increase the ratio of positive to negative.
She suggests asking yourself each morning, “What can I do for five minutes today to make my partner’s life better?” The simplest acts, like sharing an amusing event, smiling, or being playful, can enhance marital happiness.
This post has been revised to reflect the following correction:
Correction: January 18, 2013
The Personal Health column on Tuesday, about making marriages last, misspelled the given name of a professor of psychology at the University of California, Riverside, who studies happiness. She is Sonja Lyubomirsky, not Sonya.
I AM the youngest of 10 children in my family, and the only one born in the United States. My father was a municipal judge who fled Haiti during the Duvalier regime. He and my mother settled in the Bedford-Stuyvesant area of Brooklyn, but could not initially afford to bring over my four brothers and five sisters, who stayed in Haiti with relatives.
Jean S. Desravines is the chief executive of New Leaders Inc. in New York.
AGE 41
FAVORITE PASTIMES Karate and taekwondo
MEMORABLE BOOK "How Children Succeed: Grit, Curiosity and the Hidden Power of Character," by Paul Tough
Since he did not speak English fluently, my father worked as a janitor and had a second job as a hospital security guard. He later took a third job driving a taxi at night to pay for my tuition at Nazareth Regional High School, a Roman Catholic school in Brooklyn. My parents were determined that I was going to get a good education, and wanted to keep me away from local troubles, which did claim two of my childhood friends.
Working so many jobs overwhelmed my father. He had a heart attack and died at age 59 behind the wheel of his taxi. My mother found it difficult to cope without my father and moved back to Haiti in 1989 with two of my siblings. I thought I would have to leave school because I had no money for tuition, but Nazareth agreed to pay my way.
I wound up sleeping in my car for almost three months, showering at school after my track team’s practice. I also held down two jobs, both in retailing, and one of my sisters and I rented a basement apartment in East Flatbush.
After graduating from high school in 1990, I attended St. Francis College in Brooklyn, on athletic and academic scholarships. I worked first at the New York City Board of Education, where H. Carl McCall was president, then in his office after he became New York State comptroller. I later worked in the office of Ruth Messinger, then the Manhattan borough president.
I broadened my nonprofit organization experience at the Faith Center for Community Development while earning my master’s of public administration at New York University. I married my high school sweetheart, Melissa, and we now have two children.
In 2001, I began to work toward my original goal — improving educational opportunities for children — and joined the city’s Department of Education. I was later recruited under the new administration of Mayor Michael R. Bloomberg to help start a program as part of his Children First reforms.
In 2003, I became the Department of Education’s executive director for parent and community engagement, and, two years later, senior counselor to Joel I. Klein, then the school chancellor. He taught me a great deal about leadership and how to change the education system. But I began to realize public education could not be transformed without great principals who function like C.E.O.’s of their schools.
So in 2006 I returned to the nonprofit world, to New Leaders, a national organization founded in 2000 to recruit and develop leaders to turn around low-performing public schools. Initially, I managed city partnerships and expanded our program in areas like New Orleans and Charlotte, N.C.
In 2011, I became C.E.O., and revamped our program to produce even stronger student achievement results, streamlined our costs, diversified funding sources and forged new partnerships. We have an annual budget of $31.5 million, which comes from foundations, businesses, individuals and government grants, and a staff of about 200 people at a dozen locations.
We have a new partnership with Pearson Education to provide greater learning opportunities to public school principals. The goal of these efforts is to have a great principal in each of our nation’s public schools — to make sure that, just as I did, all kids get a chance at success.
Los Angeles Board of Public Works President Andrea Alarcon announced Friday that she is resigning from her post, and she apologized for what she described as "the missteps of my past."
Police have been investigating Alarcon, 33, on suspicion of child endangerment after her 11-year-old daughter was found unattended at City Hall on the night of Nov. 16. She also is facing separate child-endangerment and drunk-driving charges in San Bernardino County.
Alarcon, an appointee of Mayor Antonio Villaraigosa, did not mention either incident specifically in her announcement, saying instead that she had learned "difficult lessons."
"I understand and have prayed deeply on the gravity of my actions. I have profound regret for the missteps of my past and apologize to the Mayor, Council, Department of Public Works, the city family and the residents of Los Angeles," she said in a statement.
"I am grateful for the difficult lessons that I have learned and am now healthier and stronger," she said. "Through this experience, I have been reminded of my most important job -- being a mom. I look forward to the next chapter in my life dedicated to my family and my daughter. I ask that our privacy be respected as we continue to heal. It has been an honor and privilege to serve this great city."
Alarcon went on a leave of absence in the wake of the incident in November, saying she was seeking professional help.
Los Angeles County Dist. Atty. Jackie Lacey's office determined that the matter being investigated by the Los Angeles Police Department did not rise to the level of a felony and forwarded the case to City Atty. Carmen Trutanich. Trutanich's office said recently it would likely send the matter to state Atty. Gen. Kamala Harris because Alarcon, as a city employee, is a client.
Alarcon’s father, City Councilman Richard Alarcon, said his daughter did not receive a special severance package and was under no pressure from Villaraigosa to leave her $130,000-a-year post.
"As a father, it gives me pride to know when your kids make a misstep, they can recover," he said. "And as a father, I'm relieved that she's getting out of the glass house and I'm very excited about her future.”
Alarcon's last day of city employment is set for Wednesday.
Villaraigosa said in a statement that Alarcon was "tireless" in her work at the Board of Public Works, which handles such issues as trash pickup, street repair, sidewalk maintenance and sewer systems.
"I am encouraged by her commitment to addressing personal issues that have surfaced in recent months and know that she is already on a good path forward," the mayor said.
Nokia has opened its arms to 3-D printing with the release of printable design files and instructions for making your own Nokia phone case — and customizing it however you wish.
The mobile phone giant announced the new endeavor today, which gives Creative Commons-licensed access to the printable files for the Lumia 820′s shell. It’s the largest affirmation of 3-D printing by a major corporation thus far, bringing the world of on-demand product generation and customization one step closer to the desktops of consumers worldwide. That is, to the desktops of those who have printers so far.
In Nokia’s Conversations blog, community and development marketing manager John Kneeland discusses the launch of the project. “We are going to release 3D templates, case specs, recommended materials and best practices—everything someone versed in 3D printing needs to print their own custom Lumia 820 case,” he explains. “We refer to these files and documents collectively as a 3D-printing Development Kit, or 3DK for short.”
The files, in standard 3-D printer formats, are available on the site in three versions of the rendering: two STL options and one in STP. The company also launched a 3-D printing Wiki with material and software suggestions, and possible projects that consumers could design into these CAD files, such as built-in SIM card holders and bike mounts.
There may be more to come from Nokia in this space as well. “In the future, I envision wildly more modular and customizable phones,” Kneeland says. “Perhaps in addition to our own beautifully designed phones, we could sell some kind of phone template, and entrepreneurs the world over could build a local business on building phones precisely tailored to the needs of his or her local community.”
While the printing community has large libraries of user-generated, printable files hosted on sites like Shapeways and Thingiverse, there has been little corporate involvement in the arena.
Last year, Swedish synthesizer manufacturer Teenage Engineering released the design files for replacement knobs and dials for its popular OP-1 synth keyboard, sharing their designs through Shapeways. And while companies like Apple release the design specifications for its products to third-party case makers, no companies of Nokia’s stature have launched a 3-D printing initiative with the actual CAD files for their products.
Nokia’s project could lead to other manufacturers following suit, from car manufacturers to sporting good makers to anything in between. And while there will undoubtedly be discussion about piracy, some feel that offering the files for simple products like cases and knobs is beneficial to a company by moving a low-revenue product out of their supply chain and into the hands of the consumer.
NEW YORK (AP) — Oprah Winfrey‘s interview with Lance Armstrong is more than an illustration of a hero athlete tumbling from the heights. It’s also a pivotal moment for a famous media figure trying to climb the ladder back up.
Winfrey’s OWN network is showing signs of life after a rocky start, and the Armstrong interview offered a chance for many more viewers to check it out. The former Tour de France cyclist admitted to cheating with performance enhancing drugs throughout his career during the first half of the interview Thursday night.
That program was seen by a total of 4.3 million viewers in Thursday’s back-to-back airings, OWN said Friday. But it drew only 3.2 million viewers in its first airing, an audience that fell short of OWN’s most-viewed telecast: an interview Winfrey conducted with the Whitney Houston family last March following the singer’s death the previous month.
The second half of the Armstrong interview is to air Friday night.
The interview “showcases the No. 1 asset this network has over everybody else — and that’s Oprah Winfrey,” said Erik Logan, co-president of the network with Sheri Solata. It also showcased about everything else; OWN relentlessly advertised its programming on just about every commercial break.
Winfrey, who hosts “Oprah‘s Master Class,” ”Oprah’s Life Class” and a weekly interview show on OWN, attended a real-life television management class over the past three years. The network launch at the dawn of 2011 came during the last season of Winfrey’s popular syndicated show, and that proved to be a major strategic error.
The daily talk show gave Winfrey’s fans their Oprah jolt, and they had little reason to watch the Oprah Winfrey Network. Winfrey wasn’t much of a presence there, anyway. She was concentrating on making sure her syndicated show went out with a flourish.
OWN flailed for direction with little-noticed celebrity reality shows featuring the Judds and Ryan and Tatum O’Neal. A Rosie O’Donnell talk show was an expensive flop.
Discovery Communications, which sunk a reported $ 250 million into OWN, told Winfrey she needed to be more involved with OWN, on and off screen. In July 2011, she became CEO as well as chairwoman of OWN, replacing Christina Norman.
“The initial expectations for this network turned out to be unrealistic,” said Brad Adgate, an analyst for Horizon Media. “Oprah wasn’t on camera. The shows weren’t all that good. The network got raked over the coals. People thought the network would be doing a million viewers (on average) and it’s doing a third of that.”
The Discovery networks save money by sharing services, yet OWN had set up its own fiefdom. That ended. Discovery brought in its executives to take over legal and business affairs, and OWN laid off one-fifth of its staff last March. To the outside world it looked like a sinking ship, while to Discovery the ship was being righted.
“We were always a lot more confident internally than it looked externally,” said David Leavy, chief communications officer for Discovery.
Like all cable networks, OWN has a dual revenue stream with advertising income as well as payments from cable and satellite operators to carry it on their systems. In its early days, OWN was operating on fees negotiated for its predecessor network, Discovery Health. Now much larger fees negotiated specifically for OWN are kicking in, many of them at the first of this year. Discovery says OWN will turn profitable this year.
A network still needs viewers to sustain itself, and there are some signs of life there, too. OWN’s prime-time audience averaged 310,000 in 2012, up 30 percent from 2011, the Nielsen company said. Isolate the last three months of each year and the increase is 61 percent, even more among the target of middle-aged women.
OWN is carving out a small niche where it hadn’t expected.
The Saturday night lineup of “Welcome to Sweety Pie’s,” about former Ike and Tina Turner backup singer Robbie Montgomery’s soul food restaurant that she operates with her family, and “Iyanla: Fix My Life,” an advice show with inspirational speaker Iyanla Vanzant, represent the most successful non-Oprah shows. Another new program, “Six Little McGhees, which follows the life of an Ohio couple with sextuplets, is also on the Saturday lineup.
The shows have drawn an audience of African-American women put off by more youth-focused programming on networks like BET. OWN’s audience is roughly one-third black.
OWN recently reached a deal to develop scripted programming with Tyler Perry, the creative force behind movies like “Madea’s Family Reunion” and the TBS series “Tyler Perry‘s House of Payne.”
Winfrey was known for attracting stars and confessions on her syndicated show — remember Tom Cruise’s couch jump? And even before landing the Armstrong interview, Winfrey has delivered the goods as an interviewer on her Sunday night show, “Oprah’s Next Chapter.”
Her talk with David Letterman that aired earlier this month was one of the most remarkable interviews the reticent CBS host has ever given. Besides last year’s interview with the Whitney Houston family, high-rated episodes of “Oprah’s Next Chapter” have featured Rihanna, Usher, Pastor Joel Osteen, the Kardashians and Steven Tyler.
The Armstrong interview aired before the usual Sunday night time slot partly because it was considered newsworthy enough to rush, but also because Winfrey had scheduled and promoted a talk with Drew Barrymore for Sunday.
Considering many viewers still have to search to find the network on their cable system, that’s a particularly strong lineup for OWN. She’s more competitive with the much bigger broadcast networks than could have rightly been considered.
The impact of the Armstrong interview won’t be known for a while, Logan said. Winfrey has called it the biggest interview of her career and it has already drawn more attention to OWN’s content than anything else so far. Removing the stench of failure in itself would be a big step.
The interview could also help OWN reach the 20 million or so cable and satellite subscribers across the country that currently don’t have it on their systems, Adgate said.
“They’ll be calling their cable operators and saying, ‘How come I’m not getting this?’” he said.
___
Television Writer Frazier Moore in New York contributed to this report.
___
EDITOR’S NOTE — David Bauder can be reached at dbauder(at)ap.org or on Twitter(at)dbauder.
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This week, the Recipes for Health columnist Martha Rose Shulman asks readers to go beyond wild rice and get adventurous with their grains. She offers new recipes with some unusual grains you may not have ever cooked or eaten. Her recipes this week include:
Millet: Millet can be used in bird seed and animal feed, but the grain is enjoying a renaissance in the United States right now as a great source of gluten-free nutrition. It can be used in savory or sweet foods and, depending on how it’s cooked, can be crunchy or creamy. To avoid mushy millet, Ms. Shulman advises cooking no more than 2/3 cup at a time. Toast the seeds in a little oil first and take care not to stir the millet once you have added the water so you will get a fluffy result.
Triticale: This hearty, toothsome grain is a hybrid made from wheat and rye. It is a good source of phosphorus and a very good source of magnesium. It has a chewy texture and earthy flavor, similar to wheatberries.
Farro: Farro has a nutty flavor and a chewy texture, and holds up well in cooking because it doesn’t get mushy. When using farro in a salad, cook it until you see that the grains have begun to splay so they won’t be too chewy and can absorb the dressing properly.
Buckwheat: Buckwheat isn’t related to wheat and is actually a great gluten-free alternative. Ms. Shulman uses buckwheat soba noodles to add a nutty flavor and wholesomeness to her Skillet Soba Salad.
Here are five new ways to cook with grains.
Skillet Brown Rice, Barley or Triticale Salad With Mushrooms and Endive: Triticale is a hybrid grain made from wheat and rye, but any hearty grain would work in this salad.
Skillet Beet and Farro Salad: This hearty winter salad can be a meal or a side dish, and warming it in the skillet makes it particularly comforting.
Warm Millet, Carrot and Kale Salad With Curry-Scented Dressing: Millet can be tricky to cook, but if you are careful, you will be rewarded with a fluffy and delicious salad.
Skillet Wild Rice, Walnut and Broccoli Salad: Broccoli flowers catch the nutty, lemony dressing in this winter salad.
Skillet Soba, Baked Tofu and Green Bean Salad With Spicy Dressing: The nutty flavor of buckwheat soba noodles makes for a delicious salad.
On Friday the Federal Reserve released the transcripts of its discussions in 2007, the year the housing market, the financial markets, and the broader economy began to unravel. Focusing on the crucial period from August to December, reporters from The Times shared their findings on what the transcripts reveal in the blog entries and tweets below.
This post has been revised to reflect the following correction:
Correction: January 18, 2013
An earlier version of the 12:51 p.m. entry in this post misidentified the speaker at a December 2007 meeting who said, "I’m actually very, very worried," describing his concerns about derivative products. It was Frederic Mishkin, not Eric S. Rosengren.
WASHINGTON – Vice President Joe Biden laid out the White House’s plan to prevent future gun violence before the U.S. Conference of Mayors here Thursday, saying the proposal “isn’t just about guns.”
Speaking to a gathering of the nation’s mayors, Biden acknowledged that they are faced with a plethora of problems, but he labeled gun violence as the most immediate and urgent.
“Everyone acknowledges we have to do something, we have to act,” Biden said, adding that the Newtown, Conn., school shooting has affected the public psyche “in a way I’ve never seen before.”
Biden thanked a number of mayors for their input during the monthlong deliberations that brought in 229 groups to help form the administration’s gun proposals.
The vice president said he and Obama supported the 2nd Amendment but believe that certain individuals should be “disqualified” from gun ownership and the country needs to make “common-sense judgments” about how to keep military-style weapons off the streets.
PHOTOS: A look ahead at 2013’s political battles
Biden, who spoke extensively about high-capacity ammunition magazines that “leave victims with no chance,” stopped short of making a resounding call for an assault weapons ban.
“The president believes that there should be a new and stronger assault weapons ban,” Biden said, but he admitted that the gun industry would eventually find a way around legislative standards.
But he did call for focus on the nation’s background check system, which is plagued with inadequacies, as The Times noted in a recent article.
“Today there are 17 states that have made fewer than 10 mental health records available on the mental health background system,” Biden said, calling not only for increased funding but for universal background checks to cover all firearm sales.
Taking a jab at the National Rifle Assn.’s proposal that armed guards be placed in every school, Biden trumpeted Obama’s proposal to allow schools to decide on an individual basis whether they want to use federal funds for armed guards or other preventative measures, such as counseling.
“We don’t want rent-a-cops armed in schools,” Biden said, to the applause of a number of mayors.
PHOTOS: Past presidential inaugurations
Also in his pitch, Biden praised adjustments to the nation’s mental health services system included in the Affordable Care Act, with the caveat that there is still much more to be done, and he called for federal agencies to be given more flexibility in examining the underlying factors behind gun violence.
“Quite frankly, we don’t have sufficient data,” he said. “And as an informed society, we need data.”
Biden’s speech, which ran beyond the “10 or 12 minutes” he promised at the onset, provided a preview of the administration’s expected push for its gun proposals to the American public.
“I’ve been in the fight a long time. I have no illusions about the fight ahead of us,” Biden said, adding that he was confident that with public support founded on “common-sense” consensus, “the political obstacles that will be put up in front of us are not impenetrable.”
Editor’s Note: James Daily, a lawyer and co-author of The Law and Superheroes, typically focuses his legal critiques on the superhero world at the Law and the Multiverse website he runs with fellow lawyer and co-author Ryan Davidson. Today, Daily takes a look a very important cultural document for Wired: The contract between Bilbo Baggins and the dwarves in The Hobbit.
Ordinarily I don’t discuss legal issues relating to fictional settings that are dramatically different from the real world in terms of their legal system. Thus, Star Wars, Star Trek, Tolkien’s Middle Earth, etc. are usually off-limits because we can’t meaningfully apply real-world law to them. But the contract featured in The Hobbit: An Unexpected Journey was just too good a topic to pass up, especially since you can buy a high-quality replica of it that is over 5 feet long unfolded.
First, it seems fairly clear (to me, anyway) that Tolkien wrote the Shire (where hobbits live) as a close analog to pastoral England, with its similar legal and political structures. For example, the Shire has a mayor and sheriffs, and there is a system of inheritance similar to the common law. The common law fundamentals of contract law have not changed significantly since the time that the Shire is meant to evoke, so it makes sense that the contract would be broadly similar to a modern contract (and likewise that we could apply modern contract law to it).
So, without further ado, let’s get to it.
The Contract in General
As mentioned, the contract is quite long. This is in contrast with the contract as described in the book, which is very terse. Its terms amounted to this:
For your hospitality our sincerest thanks, and for your offer of professional assistance our grateful acceptance. Terms: cash on delivery, up to and not exceeding one fourteenth of total profits (if any); all travelling expenses guaranteed in any event; funeral expenses to be defrayed by us or our representatives, if occasion arises and the matter is not otherwise arranged for.
Even in the book’s version we see an issue: the dwarves accept Bilbo’s “offer” but then proceed to give terms. This is not actually an acceptance but rather a counter-offer, since they’re adding terms. In the end it doesn’t matter because Bilbo effectively accepts the counter-offer by showing up and rendering his services as a burglar, but the basic point is that the words of a contract do not always have the legal effect that they claim to have. Sometimes you have to look past the form to the substance.
But back to the movie version: It has at least 40 major sections and numerous footnotes and digressions in smaller type. We will begin at the beginning and go on till we reach the end, except where the form of the contract requires some jumping around.
Bilbo’s Obligations to the Dwarves
Two clauses describe Bilbo’s primary obligations:
I, the undersigned, [referred to hereinafter as Burglar,] agree to travel to the Lonely Mountain, path to be determined by Thorin Oakenshield, who has a right to alter the course of the journey at his so choosing, without prior notification and/or liability for accident or injury incurred.
The aforementioned journey and subsequent extraction from the Lonely Mountain of any and all goods, valuables and chattels [which activities are described collectively herein as the Adventure] shall proceed in a timely manner and with all due care and consideration as seen fit by said Thorin Oakenshield and companions, numbering thirteen more or less, to wit, the Company.
All contracts require some consideration from all parties to the contract. Consideration, in the contract sense, means a bargained-for performance or promise. Restatement (Second) of Contracts § 71(1). Basically, this is something of value given or promised as part of the agreement. This can be anything that the parties agree is valuable; the classic example is a single peppercorn. Whitney v. Stearns, 16 Me. 394, 397 (1839).
Here, Bilbo is promising to go with the Company to the Lonely Mountain and performing various services there, including extracting the treasure, plus a few more services we’ll get to later. In turn, as we shall see, the Company promises to pay Bilbo one fourteenth of the profits, plus a few other obligations. Thus we have “a promise for a promise,” otherwise known as a bilateral contract.
There are some other details to notice in these clauses. One is the use of defined terms (e.g. “referred to hereinafter as Burglar”). The parties to a contract may define terms however they wish, even in ways that contradict the definition used in statutes or regulations.
This is important in this case because of the use of the defined term “Burglar.” Contracts to do something illegal are ordinarily unenforceable (e.g. collecting on an illegal gambling debt). But here what matters is not that the parties used the word ‘burglar’ but rather what sort of meaning they assigned to that defined term. As we shall see, the contract doesn’t require Bilbo to do anything illegal (or at least not obviously illegal), and so the contract will probably not fail for use of a questionable term.
Thorin’s Right to Alter the Journey
These two clauses also pose something of a contradiction. On the one hand we see the first of many liability waivers:
[Thorin has] a right to alter the course of the journey at his so choosing, without prior notification and/or liability for accident or injury incurred.” But on the other hand we see this explicit obligation of care: “[the Adventure] shall proceed in a timely manner and with all due care and consideration.
Ordinarily “due care and consideration” signifies taking on liability for negligence, so this conflicts with the earlier liability waiver. Perhaps the two can be reconciled by the phrase “as seen fit by said Thorin Oakenshield and companions.” Thorin and Co. could always claim that the amount of care and consideration they saw fit was extremely minimal, though that runs the risk of making the clause meaningless, which courts usually don’t like to do. ”As a general proposition, whenever possible, the law favors reconciliation of clauses within a contract which appear contradictory.” City of Columbia v. Paul N. Howard Co., 707 F.2d 338, 340 (8th Cir. 1983). Taken together with the numerous other waivers and disclaimers, I think a court would probably conclude that Thorin & Co. were not taking on any particular duty of care. ”A writing is interpreted as a whole.” Restatement (Second) of Contracts § 202(2).
Waivers or disclaimers of liability are an important part of many contracts. These can include waivers of a product warranty (seen all the time in software license agreements) and waivers for liability due to negligence (often required before doing something dangerous like skydiving). But there are limits to liability waivers. While a party to a contract can ordinarily waive liability for negligence (although not in every jurisdiction), one cannot waive liability for gross negligence, recklessness, or intentional misconduct. So the numerous (and sweeping!) waivers and disclaimers may not be as effective as they appear at first glance.
So far the Dwarves haven’t committed any unsalvageable drafting errors or done anything that might jeopardize the validity of the contract. We’ll see if that keeps up!
Waivers for Notoriety and ‘Unlooked-for’ Misfortune
The next section is yet another waiver:
Burglar holds harmless and without blame in perpetuity the Company and its successors for any notoriety, incarceration, or proceedings brought against, in regard to or as a result of the adventure or any activities related thereto.
Also includes slander, libel, loss of face or of social standing in country of Burglar’s origin.
Remedies shall similarly not be sought for any unlooked-for misfortune befalling Burglar’s home during his absence.
The smaller text is written in the margin or otherwise in smaller writing. There’s a lot of that kind of writing in the margins that we’ll be referring to as we go through the contract. For the most part the size of the print doesn’t matter, but there are some contract terms, such as warranty disclaimers, that must be printed conspicuously, which usually means large print or all caps. UCC §§ 2-316(2), 1-201(b)(10). At common law we suspect the rules were even looser.
This set of waivers is not particularly objectionable. As discussed in the prior post, the actual scope of the waiver may not be as broad as the language suggests. For example, if the Dwarves intentionally burned down Bag End, this waiver would not prevent Bilbo from suing them for the damage.
It may bear mentioning that the slander waiver only protects the Company. Bilbo could still sue the actual slanderer, of course. Traditionally this has been easier to do in England than the United States. At common law, for example, truth was no defense to criminal libel (also known as seditious libel). Garrison v. Louisiana, 379 U.S. 64, 67-68 (1964).
Payment (and Funeral Expenses) for the Burglar
Now we come to some terms of the contract actually described in the book:
Cash on delivery, up to and not exceeding one fourteenth of the total profit [if any]. Not including any of the gross paid to other parties in lieu of royalties or help and provisions given or loaned.
All traveling expenses guaranteed in any event. But refer to attached and appended conditions, clauses and riders regarding any Return Journey. ‘Traveling expenses’ shall be understood to mean basic fare as seen fit by the Company. ‘Luxury’ catering or accomodation over and above this standard shall be enjoyed only at Burglar’s considerable [but justifiable] expense.
Funeral expenses to be defrayed by us or our representatives if occasion arises and the matter is not otherwise arranged for. Basic funeral to ‘commoner’ or peasant standard is allowed for only. Lavish ceremonies and jewelled (sic) or gilded coffins not provided. Plain pine box is the normal standard. Transport of any remains, in whole or in part, back to the country of Burglar’s origin is not included.
Most of these clauses are fairly straightforward. In terms of the plot, the more important clause is the one regarding profits. Already we see part of the definition: it excludes royalties paid to others and anything given or loaned to Bilbo counts against it. In the margins we see some more relevant terms:
Burglar acknowledges and agrees that each item of the Company’s valuables, goods, money or merchandise which he recovers from the Lonely Mountain [the 'Recovered Goods'] during the term of his engagement with the Company, shall remain the Property of the Company at all times, and in all respects, without limitation.
Furthermore, the company shall retain any and all Recovered Goods until such a time as a full and final reckoning can be made, from which the Total Profits can then be established. Then, and only then, will the Burglar’s fourteenth share be calculated and decided.
So Bilbo can’t just pick up some treasure that he likes and decide that it’s part of (or the entirety of) his share. Instead, as provided by yet another clause, he will be paid in gold or its equivalent, in correct weight or of good quality, respectively. And he can’t lay claim to any particular article of treasure. Indeed, the Dwarves could conceivably purchase gold from somewhere else and pay him with that. He’s not entitled to any part of the treasure itself as such.
There are several ways in which these contract terms affect the plot. The book has been out for about eighty years, but nonetheless, spoiler alert:
As anyone who has read the book knows, the definition of Bilbo’s “fourteenth share of total profits” goes directly to a major issue in the plot, namely Bilbo’s taking of the Arkenstone. In the book Bilbo feels comfortable taking it, since he figures it’s worth his fourteenth share, and the contract didn’t say which fourteenth he could take. This contract eliminates that possibility. We doubt that the plot will actually be modified to take this into account, but it may be an example of the writer of the contract being a bit too clever.
Next we have a non-disclosure or confidentiality clause:
Confidentiality is of utmost importance and must be strictly maintained at all times. During the course of his employment with the Company, Burglar will hear, see, learn, apprehend, comprehend, and, in short, gain knowledge of particular facts, ideas, plans, strategies, theories, geography, cartography, iconography, means, tactics and/or policies, whether actual, tangible, conceptual, historical or fanciful. Burglar undertakes and agrees to maintain this knowledge in utmost secrecy and confidentiality, and to neither divulge nor make known said knowledge by any means, including but not limited to speech, writing, demonstration, re-enactment, mime, or storage and retrieval within means or apparatus currently known or unknown or as yet unthought of.
(It is a plain drafting error to refer to “the course of [the Burglar's] employment with the company”, since a later clause specifies in no uncertain terms that “Burglar is in all respects an independent contractor, and not an employee … of the Company.”)
This confidentiality agreement is a little overbroad, since by its strict terms it requires Bilbo to keep confident anything he learns on the journey, not just things he learns in confidence. The fact that information is already publicly known is usually a defense to a breach of confidentiality, since the information wasn’t actually secret. Overbreadth probably isn’t fatal to the clause, however.
What’s really unusual about this part of the contract is that it doesn’t appear to include a clause acknowledging that monetary damages alone would be inadequate compensation in the event of a breach of confidentiality. The purpose of such a clause is to make it easier to obtain an injunction ordering the breaching party to stop disclosing the confidential information. Ordinarily breach of contract results in a payment of monetary damages, and getting an injunction usually requires showing, among other things, that those damages are insufficient to remedy the harm done.
What’s doubly weird about this is that the contract does have this clause later on:
Burglar acknowledges that monetary damages alone will be adequate compensation for a breach of this contract by the Company.
It’s curious that the contract only contemplates injunctions defensively (i.e. protecting the Company from them) and not offensively (i.e. making it easier to enjoin Bilbo).
Mandatory Binding Arbitration in the Dwarvish Tongue
There are also a group of clauses dealing with disputes arising under the contract. This is an important part of many contracts. If you’re going to the trouble of creating a formal legal agreement, then you might as well contemplate what might happen if the deal goes bad. Somewhat anachronistically, the contract contains an arbitration clause:
Disputes arising between the Contract Parties shall be heard and judged by an arbitrator of the Company’s choosing
I say “somewhat anachronistically” because although arbitration has a long history in the common law — going back at least as far as 1609 — it was for centuries frowned upon by the courts. One early case, Vynior’s Case, held that mandatory arbitration clauses (i.e. requiring a party to a contract to submit to arbitration) were revocable. In other words, parties could submit to arbitration but only by ongoing, mutual agreement. It was not until the 1800s that mandatory arbitration really became acceptable in either England or the US. See, e.g., Burchell v. Marsh, 58 U.S. 344 (1854).
The other issue is that the clause allows the Company to choose the arbitrator. This is highly unusual and may actually invalidate the arbitration clause. In order to comport with due process, a mandatory arbitration agreement must, among other things, provide a neutral, impartial decision maker. Typically this is done by allowing the parties to jointly select an arbitrator or to have an impartial third party (such as an arbitration agency) select one.
The next part of the arbitration paragraph is a rarity for an American lawyer:
… and all pleas shall be pleaded, shrewed [sic], defended, answered, debated and judged in the Dwarvish Tongue
Obviously this is a significant disadvantage for Bilbo, as he evidently cannot read (and presumably cannot speak) Dwarvish. Choice of language clauses like this one are much more common in international contracts than in contracts between parties in the United States. They are also much more common in contracts that contain arbitration agreements rather than forum selection clauses (e.g. “any disputes arising under this contract will be heard in the courts of Capital City, State X”) because in most countries the courts only deal in one official language, making a choice of language clause redundant. But when the case will go to arbitration, the chosen arbitrator could potentially speak multiple languages.
However, the most common reason for a choice of language clause is when the contract itself is translated into multiple languages for the benefit of the parties. In that case it is common for the contract to specify that one version is the “authoritative” version.
Jurisdiction: The Shire vs. the Dwarven Kingdom?
The one thing that leaps out at me about this contract is that it doesn’t contain a choice of law clause. Such a clause allows the parties to specify what jurisdiction’s law will govern the contract. This is particularly useful when multiple jurisdictions may potentially apply. The area of the law that deals with figuring out which court has jurisdiction and which law applies is known as conflict of laws.
Conflict of laws is a complex subject. Typically it is a stand-alone course in law school. So we won’t go into too much detail here, but suffice to say that arguably both the law of the Shire and the law of the Dwarven Kingdom could conceivably apply to this contract. Some of the factors that a court might consider include:
The parties are a Hobbit of the Shire and a group of Dwarves.
The contract was signed in the Shire.
The contract concerns services to be performed in the Dwarven Kingdom.
The most likely source of the breach of the contract occurs in the Dwarven Kingdom.
Since the applicable law is debatable, this is precisely the kind of case in which a choice of law clause makes sense, so its absence is notable.
Ownership of the Ring: Specialized Equipment?
Given the clauses describing ownership of the recovered goods, one might wonder whether the Company has a claim to the One Ring. After all, Bilbo has expressly agreed that he has only a right to 1/14th of the profits, to be paid in a form determined by the Company, and no right to the treasure itself. So could it be that the One Ring merely forms part of the treasure? The contract seems to indicate otherwise.
First, the contract describes the extraction of goods from the Lonely Mountain as being the subject of the Adventure, whereas the One Ring was found underneath the Misty Mountains. Second, the contract includes this clause:
Specialist equipment required in the execution of duties in his professional role as Burglar shall be purchased, procured, purlioned [sic] or obtained by Burglar, by whatsoever method Burglar sees fit.
The One Ring is definitely “specialist equipment” and it turns out to be required in the execution of Bilbo’s duties in his professional role as Burglar. Certainly he could not have defeated the spiders, evaded the Wood Elves, or snuck past Smaug without it (possibly only the last counts as proper burgling, but the point stands). So the Dwarves would not appear to have any claim to the One Ring.
I probably would have left out the “purloined” part, though. That comes dangerously close to making the contract unenforceable on the grounds that the subject matter of the contract is illegal.
Closing Thoughts
One the whole, the contract is pretty well written. There are some anachronisms, unnecessary clauses, typos, and a small number of clear drafting errors, but given the contract’s length and its role in the film (which is to say not a huge one, especially in the particulars) it’s an impressive piece of work. I congratulate prop-maker and artist Daniel Reeve on a strong piece of work. A lesser studio or artist might have been tempted to go with several pages of lorum ipsum written in Cirth. If you’d like an even more accurate replica of the contract, Weta’s online store has a version with hand-made touches by Mr. Reeve.
(Reuters) – Former Beatle Paul McCartney has recorded a new version of his 1971 song “Heart Of The Country,” and directed fans to YouTube where the song accompanies an animated clip featuring his late wife Linda.
“I did a new mega simple version of ‘Heart Of The Country’ for the Linda animation on YouTube,” McCartney posted on Twitter on Wednesday. The 40-second clip was posted in the United Kingdom on January 11 by “Linda McCartney.”
“Sounds cool to me!” he said in Wednesday’s tweet. In an earlier post, McCartney tweeted “Looks great – love it!”
In the clip, an animated Linda McCartney snaps photographs, prepares and serves food for children and animals and plays music in a forested setting.
Linda McCartney, who died 15 years ago, was an accomplished photographer and dedicated vegetarian and animal rights activist.
The singer did not say why he re-recorded the song, but people who posted comments on YouTube speculated that the clip and accompanying music would be used for a new advertisement for Linda McCartney’s line of vegetarian food products.
Media reports said the ad would air later this month.
“Heart Of The Country” was recorded for Paul and Linda McCartney’s 1971 “Ram,” which was the only album credited to the pair.
Linda McCartney died of breast cancer in 1998 at age 56.
(Reporting by Chris Michaud; editing by Patricia Reaney and Stacey Joyce)
Music News Headlines – Yahoo! News
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As mentioned, the contract is quite long. This is in contrast with the contract as described in the book, which is very terse. Its terms amounted to this:
