How To Argue A Contracts Case Like Aristotle

As I continue to explore the classical world, I'm frequently reminded of how little the basics of life have changed.  In part, this is due to the huge debt that we owe to the Greeks and Romans in the fields of philosophy, government, law and rhetoric.  One example, of the continuing freshness of many classical works can be found in Aristotle's The Rhetoric which he penned more than 2,300 years ago.

In Book I, Chapter 15, Aristotle explains how to argue either side of a contracts case.  He begins by explaining that the basic objective in a contracts case is to either increase or diminish ("αὔξειν ἢ καθαιρεῖν") both the importance and credibility of the contract at issue (§ 20).

Once a contract has been admitted as genuine, a party should insist on its importance if it supports that party's case.  Aristotle suggests that the proponent of the contract should argue that the contract is a limited and special law ("ἡ γὰρ συνθήκη νόμος ἐστὶν ἴδιος καὶ κατὰ μέρος") so that a breach of contract is a breach of the law itself ("ὥστε ὅστις ἀπιστεῖ ἢ ἀναιρεῖ συνθήκην τοὺς νόμους ἀναιρεῖ") (§ 21).  Aristotle further points out that the proponent can argue that most business relations are voluntary and governed by contract and if contracts are not enforced, then human business relations are destroyed.

If arguing against a contract, Aristotle points out that it may be possible to argue that the contract was a product of fraud or compulsion ("συνθῆκαι δὲ γίγνονται καὶ ἐξαπατηθέντων καὶ ἀναγκασθέντων") (§ 25).  Thus, he anticipates by more than two millennia California Civil Code Section 1567(1) & (3) ("An apparent consent is not real or free when obtained through: (1) Fraud . . . (3) Duress . . . ").  

Aristotle also notes that a contract may be contrary to law.  For example, Section 25701 of the California Corporations Code provides "Any condition, stipulation or provision purporting to bind any person acquiring any security to waive compliance with any provision of this law or any rule or order hereunder is void".  Interestingly, Aristotle notes that the conflict may be not to local law, but to foreign law (§ 25).  Thus, he posits that the opponent of a contract may appeal to conflicts of law principles.

Finally, Aristotle points out that it may be possible to argue that a prior or subsequent agreement may supersede the agreement at issue.  Thus, he foresees the problem addressed in part by statutes such as California Commercial Code Section 2202: "Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented (a) By course of dealing, course of performance, or usage of trade (Section 1303); and (b) By evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement."

I refer those who doubt the continuing validity Aristotle's advice to former SEC Chairman (1939-41) and federal Second Circuit Court (1941-57) Judge Jerome Frank who wrote:

It will repay any judge to re-read carefully Aristotle's Rhetoric, which, in large part, is a manual on how to win a law suit, telling in detail the numerous ways to appeal to a judge's prejudices.

In re JP Linahan, Inc., 138 F.2d 650, 654 n.17 (2d Cir. 1943).