Memoween

Opinion   /   October 29, 2012  / 


Since most of us celebrated over the weekend, it’s all too easy to forget that Halloween is actually this Wednesday. This means we still have to face the night of souls and its inherent dangers. However, there is no need to panic because you are equipped with a legal education—the best preparation to handle this sort of situation. Use this memo as a starting point for dealing with the legal issues surrounding three of the most common creatures encountered on Halloween: ghosts, witches, and the Devil.

Ghosts

The problematic behavior that ghosts most often engage in is haunting real property, especially those zoned single-family homes. Don’t let the ghost lobby scare you, though; “haunting” is just a euphemism for squatting. Make sure you file suit against the poltergeist for trespass immediately because his claims for an easement or, worse, adverse possession will only get stronger with time. You may need to hire an expert, like a medium or priest, to ensure you satisfy the service requirements of procedural due process since ghosts are notoriously uncooperative communicators. If it turns out the ghost does have a strong claim for an interest in the property from the previous fee-simple owner’s permission or building of the property on an Indian burial ground, consult the law in your jurisdiction. There are a few arguments you can always make: it is inequitable to you as well as against the public interest in a free market for the property to continue to be burdened with the spectral interest, and dead people can’t own things. If you fail against the ghost, you may have to pursue the previous owner for relief. This is something to keep in mind if you decide to escape the ghost by selling the property; the sale could be rescinded if you fail to disclose the ghost. See Stambovsky v. Ackley, 169 A.D.2d 254 (N.Y. App. Div. 1991).

Witches

Although legal mechanisms for dealing with witches have eroded in the post-colonial era, there are still simple, adequate remedies in tort. Common-law assault and battery cover most attacks by witches, e.g. pokes with spectral needles, fireballs directed at you and your friends on a public highway, and straight-up punches to the face. Other common witch behaviors also constitute intentional torts. Bewitchment of personal possessions is a complete interference with the owner’s right of control constituting conversion, or at the very least trespass to chattels. Similarly, transforming people into frogs is false imprisonment because the transfiguree is completely confined in the non-human form, and obtaining a kiss from a member of the nobility in such a form is not a reasonable means of escape. Finally, those spells that do not meet the imminence requirement for assault could still constitute intentional infliction of emotional distress. For example, conjuring a clawed monkey-man is clearly outrageous and extreme conduct beyond the bounds of decency, and the abomination would inspire extreme emotional distress in the reasonable viewer as he realizes this world and its natural laws are just a gossamer veil obscuring a Lovecraftian reality of mind-ending chaos.

The Devil

The danger many associate most strongly with the Devil is demonic possession, such as in The Exorcist line of movies. However, the possession at issue in that film, like virtually all possessions, was perpetrated by a lesser demon, and you are unlikely to encounter many Screwtapes trick-or-treating this Halloween. Instead, the Prince of Darkness focuses on contract law. The seminal depictions of Satan are as a transactional attorney, such as in Goethe’s Faust and the Brendan Fraser classic Bedazzled. (A notable exception is Rosemary’s Baby, which deals primarily with reproductive rights). The Beast is also shown bargaining strongly with Jesus to enter into an oral contract in the primary canonical text, Mel Gibson’s The Passion of the Christ.

Lucifer is an attractive transactional partner because he has the power to grant favors beyond mortal comprehension, but his bargaining and legal skills require that you do some critical homework before coming to the table. What is your best alternative to negotiating with the Adversary? Can the two of you work together to increase the size of your metaphysical pie? Perhaps Beelzebub would be satisfied with a life-interest in your soul (though make sure the term is for your life rather than his, as he is immortal). You really only need your immortal soul after you die, so this is a potential path to both parties leaving the table with more than they put into the transaction. If el Diablo continues to demand your entire soul, and you cannot settle for your BATNA, at least try to insert a favorable choice of law provision or an escape clause into the agreement in preparation for litigation.

Since the barrier between mortal and metaphysical jurisdictions will have already been transgressed in your transaction and the resulting suit, see if you can secure representation by the long-dead Daniel Webster. Webster has a strong record defending enforcement actions against Mr. Scratch. You will likely be able to argue that the Deceiver violated the implied covenant of good faith by twisting your requests into ironic punishments, or at least that there was no meeting of the minds on what you were bargaining for. Many jurisdictions will also find a contract to sell your soul unconscionable, so try to avoid judges who believe strongly in freedom of contract, as they are likely to give the Devil his due, i.e. specific performance, i.e. your soul.

Conclusion

Despite the dangers Halloween presents, there are legal strategies and options to get through it. Residents should prepare by stocking up on hornbooks, securing any loose articles to prevent levitation, and remaining indoors until the sun comes back out.

Cultural Literacy and the Law is a humor column written by an anonymous Harvard Law student. The column runs every other Monday.

The views in opinion editorials, columns, and letters do not necessarily reflect the views of The Harvard Law Record.

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