Договор Бильбо: юридический анализ

Перед тем, как Бильбо Бэггинс отправляется в долгий поход с гномами, он должен подписать длинный договор. Теперь американский адвокат произвел анализ, насколько этот договор юридически действителен.

Договор был создан новозеландским художником и каллиграфом Даниелем Ривом по мотивам договора из книги, но существенно дополнен по сравнению с ним. Теперь, когда его стало можно купить в виде копии реквизита от WETA Workshop и Noble Collection, его текст был полностью расшифрован, а американский адвокат Джеймс Дейли провел подробный анализ. Правда, перед тем, как углубиться в анализ, мы процитируем полностью текст контракта.

1. Conditions of Engagement

In role as Burglar for Thorin and Company, or in any other role they see fit, at their sole discretion from time to time. Agreed hereto, freely and under neither duress nor force nor coercion nor extortion nor threat to life and/or limb, and superceding any prior contract, agreement or undertaking, survivable clauses notwithstanding, signed and witnessed below, as set forth hereunder: And as appended to from time to time at the sole discretion of the Director, with all new material being read as if originally included herein.

2. 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. Burglar agrees that any and all information given him by the Company remain Strictly Confidential. All conditions imposed herein are deemed to survive loss or destruction of this Document, whether by accidental or willful mishap, and any reconstruction, re-wording, updating or improvements for additions made.

3. 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. No recompense for loss of income due to any extended absence applies. Burglar is ‘at the Service’ of Thorin and Company until released therefrom.

4. 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.

5. 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. See also attached clause regarding early termination …shall include a condition similar to this condition, notwithstanding any repetition, redundancy, over-statement or implication hereby recognized or disclosed. Any and all damages brought against the Company by third parties, whether during the course of the Adventure or subsequent to it, shall be bourne by the Company and the Burglar on a pro-rata basis, but the reverse situation does not apply.

6. 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 accommodation over and above this standard shall be employed only at Burglar’s considerable [but justifiable] expense.

7. 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 provided for only. Lavish ceremonies, and jeweled or gilded coffins not provided. Plain pine box is the normal standard. Transport of any remains, in whole or in part, back to Burglar’s country of origin is not included. Furthermore, the Company shall retain any and all Recovered Goods until such a time as 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 estimated and divided.

8. Burglar shall devise means and methods to circumvent any difficulties arising from any illegal or illicit occupation or guardianship of Company’s rightful home and property. Successful disposal of any such guardian, creature or squatter in said home shall not necessarily earn any additional monetary or fiscal reward, but will definitely guarantee Burglar (if he survives) and Burglar’s family the undying gratitude and promise of service in perpetuity and forever of the Company and its successors. A plaque shall be erected and dedicated in Burglar’s honor if he meets an untimely end in attempting this feat. Material size and location of such a plaque is to be decided at Director’s sole whim and desire. Present Company is not obliged to assist Burglar in this so called ‘pest control’ phase of the Adventure.

9. Eviction or elimination of any undesirable guardian of Company’s property, goods or premises or holdings, shall take priority over the recovery of said property, goods, premises or holdings, should such a guardian be encountered. Elimination shall take priority over eviction in any and all cases. Unequal relative stature of Burglar and any discovered hostile guardian, occupier or squatter shall not constitute or be considered as grounds for refusal nor excuse against undertaking the forceful removal of said undesirable guest.

10. Burglar hereby accepts, warrants, and undertakes responsibility for his own shoes [if worn by same], clothing and personal effects for the duration of the Adventure. Any item borrowed [intentionally or not] by Burglar during the Adventure shall be returned upon journey’s completion in condition or conditions similar to that/these when borrowed, or appropriate recompense made to the Company or its successors.

11. Meals provided [or not] at the sole discretion of the Director, with due respect for availability, season, or any special dietary requirements not disclosed at the outset. ‘Meals’ here shall refer and shall be restricted to breakfast, luncheon, and evening dinner. So-called second breakfast, morning or afternoon tea, or late supper are not included. Company is prepared to sample Burglar’s wines, ales, beers, and meads; in short, any beverages of a non-perishable nature, and if found acceptable, to transport such beverages at Company’s own expense. And for Company’s own consumption. In such opportune circumstances, Burglar is naturally entitled to partake of what has essentially become common fare – up to one fourteenth part thereof, or less, but not more. 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.

12. The Principles agreeing to this contract, namely the Company, [as represented by Thorin Oakenshield] and the Burglar, and known collectively henceforth as the Parties, shall signify their agreement to all clauses contained herein [the Conditions of Engagement] by signing or making their marks in the spaces provided for so doing, and affixing seals if applicable. The Witnesses to this Contract, being those others whose signatures, marks or seals are affixed hereto, affirm, state, and declare their understanding and unbiased agreement to all that is contained herein. Conditions subsequently appended or added to this Contract are automatically assumed to be agreed upon as if they were present, read and understood at the signing and witnessing hereof.

13. 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. Company may modify or adjust this Agreement from time to time at its sole discretion, with or without notice to Burglar. The Witnesses shall be nominated, chosen, and selected by the Director of the Company, currently Thorin Oakenshield, and no correspondence on the matter will be entered into.

14. Early termination of this Contract shall attract an early termination fee to be determined by Thorin and Company at their sole and absolute discretion. All clauses contained herein shall survive such termination and remain enforceable in all countries whether existent now or in the future, throughout the known world. Each of the Parties severally represents, warrants, and covenants, that the Party possesses the ability and right to enter into this Agreement and fulfill the obligations set forth herein, and has not made any commitment with respect to the matters here discussed that are in conflict with this Agreement Burglar may not modify or change the Agreement except by a writing signed by both Parties.

15. Disputes arising between the Contract Parties shall be heard and judged by an arbitrator of the Company’s choosing and all pleas shall be pleaded, shrewed, defended, answered, debated, and judged in the Dwarvish Tongue. This Agreement does not obligate the Company to seek out or retain the services of the Burglar. The Company makes no promises nor representations whatsoever as to the amount of business Burglar can expect at any time in the future under this Agreement.

16. In the event of a dispute arising in relation to the terms of this agreement, the non-prevailing party shall reimburse the prevailing party for all reasonable fees and costs resulting therefrom. Remedies shall similarly not be sought for any unlooked for misfortune befalling Burglar’s home during his absence. Let the present instrument be cancelled if the said Burglar refrains from asking or exacting payments of the aforesaid amounts of money or goods for the space of one year after the time limit has elapsed for asking or obtaining the payment.

17. If any provision of this Contract is held unenforceable then such provision shall be modified to reflect the parties’ intention. All remaining provisions of this Contract shall remain in full force and effect. If two or more provisions of this Contract conflict, Company shall decide which shall take precedence. Burglar agrees to execute all papers and to perform such other acts as Company may deem necessary to secure for Company or its designee the rights herein assigned. Modified conditions are fully enforceable and carry no less weight than any unmodified conditions contained herein.

18. The failure by one party to require performance of any provision herein shall not affect the party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of the Contract constitute a waiver of any subsequent breach or default or a waiver of the provision itself. The compensation received by Burglar from the Company in connection with tasks performed pursuant to this Agreement will be the Burglar’s sole claim and interest regarding the Adventure and services performed hereunto, and Burglar will not be entitled to any royalty or further compensation, for any reason.

19. Wherefore each of the parties agree that any action in relation to an alleged breach of this Agreement shall be commenced within one year of the date of the breach, without regard to the date the breach is discovered. Any action not brought within that one [1] year time period shall be barred, without regard to any other limitations period set forth herein. Breaches of any provision or provisions of this Contract by either Party shall be heard, pleaded, debated, defended, answered, and judged in a country of the Company’s choosing, and at a time and date of the Company’s choosing. Burglar’s failure to appear constitutes acquiescence with Company’s ruling on the matter.

20. All conditions imposed herein are deemed to survive loss or destruction of this document whether by accidental or willful mishap, fair means or foul, and any reconstruction, re-wording, up-dating, or improvements or additions made shall include a condition similar to this condition, notwithstanding any repetition, redundancy, overstatement or implication hereby recognised or disclosed.

21. Any and all damages brought against the Company by third parties, whether during the course of the Adventure or subsequent to it, shall be bourne by the Company and the Burglar on a pro-rata basis, but the reverse situation does not apply. Burglar indemnifies and holds harmless the Company and its successors in all matters relating to charges brought against it…in relation to this or any other Adventure

22. No recompense for ‘loss of income’ due to an extended absence shall apply. Burglar is deemed to be ‘at the service’ of Thorin and Company until released therefrom. Adventure undertaken at Burglar’s financial as well as personal risk. It is assumed that Burglar will already possess and carry upon his person at all times an assortment of skeleton keys, wedges, pry-bars, masks, disguises, and other ‘tools of the trade’, and obtain same or remedy any deficiency by burglarious means and endeavors.

23. Specialist equipment required in the execution of duties in his professional role as Burglar shall be purchased, procured, purloined or obtained by Burglar, by whatsoever method Burglar sees fit. Company may provide, for hire, equipment at its disposal. Rates to be negotiated at the time of hire Lanterns, lamps, torches, and any other equipment considered a fire risk shall be lit and operated by the fire safety officer nominated by the Company.

24. Weaponry not provided. Although the Adventure is, by its nature, a stealthy undertaking, combat or self-defense is not unforeseeable, and indeed may become necessary, well-advised, important, imperative or inescapable. Accordingly, Burglar should arm himself as best befits his stature, ability, ferocity bravery, timidity, conviction and determination. Company may provide swords, axes and the like, for hire at rates to be determined at its sole discretion, and subject to change without notification. personal armour, mail, shields, vambraces, helmets and the like are similarly the Burglar’s own responsibility and shall be furnished by said Burglar.

25. Return Journey is deemed outside the Terms of Reference encompassed herein, and accordingly Burglar shall return to his place of residence by his own means, guidance, expertise and expense, but with such directions, advise and goodwill as can be offered by the Company. All provision, expenses, and necessities for any return Journey shall be sourced, found and paid for by the Burglar. Provision of Transport for Burglar and/or portage of Burglar’s goods to be negotiated separately, and are in no way included or implied herein.

26. Transport provided in the form of of one [1] pony, to be returned in good condition at the conclusion of the Adventure [or monies paid in lieu thereof]. portage provided for one large or two medium sized bags. Additional baggage incurs portage fees at current rates. Portage rates for excess baggage on main trip, or any baggage on return trip calculated by linear dimensions or by weight, whichever is the more expensive. Pipeweed and other such luxury items shall be provided by Burglar; indeed not only for himself, but for the other members of the Company if such can be obtained along the way by means pertinent to his profession. Wherefore and for which the Company promises the whole amount, to give and to pay to Burglar or to Burglar’s accredited messenger one fourteenth of total profits, if in gold then good and of correct weight, and if other than gold, then of good quality and of correct and proper measure, within one year of the completion of the Adventure. If, however, Company does not make good on payment herein set forth, Company becomes liable for the whole amount, to give to Burglar, making the stipulation, the penalty of the double of the said amount, the aforesaid conditions remaining as settled. Furthermore, Company pledges to Burglar as security for the aforesaid promises all its goods existing and future. The above is binding with the exception and special reservation that if the amount of goods, property, and merchandise paid thereby is transported by a third party [or indeed by parties of any other denomination or enumeration], whose safety cannot be guaranteed in any case, and furthermore the said goods, property, and merchandise fail to arrive at the destination nominated by the Burglar, then and in such a case the present instrument is cancelled, void, and of no value. Let the present instrument also be cancelled if the said Burglar refrains from asking or exacting payments of the aforesaid amounts of money, goods, property or merchandise for the space of one year after the time or the time limit has elapsed for asking, exacting or obtaining said payment. Without limiting the foregoing, Burglar expressly and forever waives any and all claims that Burglar may now or hereafter have in respect and in any jurisdiction to the so-called “Moral Rights” with respect to the Recovered goods. Burglar understands that he embarks upon this Adventure at his own financial as well as personal risk.

27. Adventure undertaken entirely at Burglar’s own risk. Present Company shall not be liable for injuries inflicted by or sustained as a consequence thereof, including, but not limited to, lacerations, evisceration, incineration.

Signed: Thorin son of Thrain
Witnessed: Balin son of Fundin
Burglar: Bilbo Baggins

Первым делом Дейли констатирует, что договор достаточно длинный и содержит много лишних пунктов. С другой стороны, он очень грамотно сформулирован и оставляет мало вопросов. Один из самых важных пунктов, который может оказаться роковым для Бильбо позже — пункт, обещающий ему одну четырнадцатую долю сокровищ. Этот пункт содержит ограничение, что он не имеет права на некоторые отдельные элементы из сокровища Эребора. Кроме того, ему обещана лишь компенсация в высоте стоимости 1/14 части всего сокровища, а не физически 1/14 часть горы золота.

Кроме того, в большом абзаце Бильбо обязуется хранить тайну о предприятии. Ему запрещается записывать или рассказывать что-либо из того, что связано с его походом. Этот пункт Дейли считает преувеличенным и полагает, что в суде он был бы признан недействительным, так как запрещает Бильбо рассказывать о том, что известно повсеместно. А вообще этот пункт — личная пародия Даниеля Рива на аналогичные пункты о конфиденциальности в договорах Warner Bros., которые должны подписывать все участники проекта. Особенно это заметно по уточнению, что Бильбо запрещается сохранять эту историю на каких-либо носителях и воспроизводить на устройствах, которые еще не изобретены к моменту заключения договора.

Кроме того, адвокат считает недопустимым (и устаревшим) пункт, где описывается, что спорные ситуации о содержании договора должны быть рассмотрены третейским судьей, которого выбирают гномы. Обычно в такой ситуации должно быть выбрано нейтральное лицо. Кроме того Бильбо оказывается в весьма невыгодном положении, так как в таком случае языком переговоров выбирается «гномий язык».

Ну и в заключение: адвокат не нашел в договоре упоминания, под каким законодательством действует этот договор. Для договоров такого объема это стандартная информация, так как конфликт разных юриспруденций — весьма сложная тема.

Полный анализ (на английском языке) — на сайте Wired.com. Также спасибо HDRF.