Continuing Our Discussion of an Obligation Perfectly-Well Expressed

A few days ago, we commented on whether contract language adequately indicates a choice that employment is for a term (not at-will).

Tettamble attempts to apply interpretative guidelines–somewhat tedious ones–formulated long-ago. In brief, they require contract language be very clear if it is to opt-out of the default principle that employment is at-will.  Where a tedious, counter-intuitive interpretative principle is long-standing, it is helpful to assess the context in which the principle developed.  If the contextual legal framework has changed, would it not make sense to re-assess the tedious, counter-intuitive principle?

… More after the break

Let’s look at Wood on Master and Servant (1877).  It notes, in § 134, the English rule was that a general hiring was presumed to be a hiring for a year.  The treatise notes that interpretative questions there

generally arise, not between the master and servant, but in settlement cases, where it is sought to charge a pauper upon a community by showing that he acquired a settlement there by having been hired to serve, and having actually served under a contract for a yearly hiring, one year.

For those not entirely familiar, the reference to old English law, evidently involves public assistance dependent on meeting certain residency requirements (referenced the law of settlement).  See Quigley, Rumblings of Reform:  Northern Poor Relief Legislation in Antebellum America: 1820-1860, 26 Cap. U. L. Rev. 739, 741 (1997).

OK–so we don’t seem to be discussing anything relevant to construction of an employment agreement in 2013.  And that is, perhaps, the point.  The United States, as Wood notes, did not follow this lead (with a one-year term as a default).  Interestingly, the treatise further notes:

It is competent for either party to show what the mutual understanding of the parties was in reference to the matter[fn5]…

[fn5]  But in order to show what the real understanding and intention of the parties was, all the facts and circumstances surrounding the parties and the transaction, may be shown, as that the plaintiff was, to the knowledge of the defendant, seeking a permanent situation, and any facts or circumstances that tend to establish the mutual understanding of the parties.

Wood then goes on to cite Franklin Min. Co. v. Harris, 24 Mich. 115 (1871), a case allowing evidence frankly not very persuasive to be sufficient to justify a jury determination the employment was for a term.

Long ago a court may have treated employment for a term as “entire”, so that the employee would have not been entitled to recovery on-contract where the employee to quit before the end of the term.  Wood further states:

[I]n all cases where a definite term is fixed, the fact that the wages are to be at so much a month, and no time is fixed for a payment of the wages, does not make the contract divisible, and full performance is a condition precedent to a recovery of wages.

Of course, modernly a court would be likely to treat an employment for a term as divisible.  See Restatement (Second) of Contracts § 240, illus. 4.  And, were the contract entire, the old rule would have prevented even restitution.  Your author’s favorite statement:

It will not admit of the monstrous absurdity, that a man may voluntarily and without cause violate his agreement, and make the very breach of that agreement the foundation of an action which he could not maintain under it.

Stark v. Parker, 19 Mass. (2 Pick.) 267, 275 (1824).

One supposes, then, that the archaic interpretative principle, when adopted, at least had the salutary impact of opting-out of arrangements in which one might work for quite some time and be entitled to no compensation.

But our law governing divisible contracts has now outgrown its formerly primitive conceptualization.

Why, then, should a tedious, archaic interpretative presumption continue to be applied in a modern case, such as Tettamble, when that archaic interpretative principle is no longer necessary to avoid the anomalous consequences of now-discarded conceptualizations limiting divisibility of contracts?

And why further apply that outmoded interpretative principle when, as noted in our last post, the language used is quite similar to what even the old authority indicated was sufficient to opt-out of the default?