"Yes," Pauline said. "I am aware of that. But if that happens they won't be the only losers now, will they?"
"We're not renegotiating," Frowley said.
Pauline looked over at Casting. "Mr. Casting, if you sue Intemperance for breach of contract and win you will get next to nothing out of them. They are musicians and musicians only. They do not know how to do anything else. If they can't play their music, they are not going to become stockbrokers and make millions buying and selling. They are not going to go to medical school or law school or engineering school. They'll end up working at gas stations and convenience stores making minimum wage. You can garnish their wages for the rest of their lives and you won't get enough to pay for a month's retainer on Mr. Frowley's firm. You understand that, don't you?"
"We understand," Casting said. "And we don't care."
"Really?" she asked. "You don't care that you'll be losing somewhere in the vicinity of eighty million dollars in revenue?"
"That argument won't work," Casting said. "We've already told your little brother this but he didn't seem to get it. So now, we'll tell you. You seem to be the smart one in the family so maybe you'll be able to grasp this. If push comes to shove we will eat that eighty million dollars and destroy Intemperance forever. We will do this without hesitation in order to avoid setting a precedent. Do you know what a precedent is, hon? Did they go over that term in whatever rural law school you attended? If we renegotiated the Intemperance contract because of this asinine and illegal stunt your clients pulled, we'd have twenty other bands in here before the ink was even dry trying to pull the same thing. That would end up costing us a hell of a lot more than eighty million in the long run. So the answer is no. No way, no how are we going to allow a band — no matter how successful or profitable they are — to blackmail us like this. It will not happen. Never!"
Pauline sat, expressionless, throughout this tirade. She had been hoping they would give in once they realized that Jake and Matt and Bill, the heart, soul, and creativity of the band, were truly prepared to go to the wall on this issue. After all, eighty million dollars was a lot of money for a corporation to throw away. But now it seemed that National was prepared to go to the wall as well. It was time to play her final card, a card that was — at least in part — bluff and bluster.
"You seem to be fond of the word 'precedent', Mr. Casting," she said. "Let's talk about that for a minute."
"I have nothing more to talk about," Casting said. "As I told you, this meeting is now over."
"Oh, I think you might want to listen to this last little bit I have to say. After that, I'll leave peacefully and quietly."
"Fine," Casting said. "But we're not changing our position."
"Understood," she said. "Now we were talking about precedent, weren't we? They did teach me about that word at that little old law school I attended and it's a very good word, a very good concept. In this particular matter it ties neatly into another little legal term I learned there, something called 'unenforceable provisions'. Have you ever heard of that one, Mr. Casting?"
Casting hadn't, but Frowley had. "Oh please," he said. "Your unsophistication at the study of law is really showing now. There is no way on God's green earth unenforceable provisions could possibly fly in this case. Not even with that drooling moron who sat in judgment this morning."
"Don't think so?" Pauline asked.
"I know so," Frowley said.
"What exactly is this unenforceable provisions thing we're talking about here?" asked Casting.
"It's nothing, sir," Frowley said. "Absolutely nothing but this ambulance chaser grasping at straws. There is no way it could even remotely be applied here."
"Probably not on initial judgment," Pauline allowed. "But on appeal... well, that could get interesting now, couldn't it?"
"You would be laughed out of the courtroom," Frowley said.
"Excuse me," Casting said, "but what exactly are we talking about here?"
"It's a pipe dream," Frowley said. "An area of the law that has no relationship to a music contract."
"Since Mr. Frowley doesn't seem to want to explain 'unenforceable provisions' to you," Pauline said, "perhaps you would allow me?" She paused and when no one spoke up to tell her no, she explained it. "An unenforceable provision is a clause or clauses put into a written contract that is considered so contrary to acceptable behavior that even if the party to the contract voluntarily signed off on it and understood it the law will not allow the enforcement of it. In effect, by its very nature, the provision is considered unenforceable. The most obvious application of this concept is when someone inserts an illegal act into a contract. For instance, if you had put in that if Intemperance does not sell enough albums to cover your initial outlay of funds, they would have to smuggle two hundred pounds of cocaine across the border for you."
"We have no such clause in our contract," Casting said.
"That was just a simplified example of illegal provisions," Pauline said. "I made it so you would understand the concept. Another example would be outrageous acts. The example they like to give in law school — at least at the hick law school I went to — is a company puts in a clause that says if a supplier does not deliver on schedule he has to cut off his right arm. Just because the supplier signed and consented to such a clause does not make it enforceable."
"We have nothing like that in our contract either," Casting said.
"Of course you don't," said Frowley. "I told you she was grasping at straws."
"Again," said Pauline, "those were just simplified law school examples used to teach the basic concept of unenforceable provisions. Why don't we talk real world here for a minute? I personally have worked on three unenforceable provisions cases in my career and have taken two to litigation, one of which I won, the other I lost. In the first case, a fertilizer firm — I know, that hick thing again — put into its supply contract with one of our farming conglomerates that if they, the supplier, failed to deliver the promised amount of fertilizer on time and in the proper amount, they were still entitled to payment in full. The conglomerate signed this contract voluntarily — this was before my time or I would have advised against it — and then, one day, a train derailed and destroyed an entire shipment. The supplier demanded full payment under the contract. The conglomerate refused and I challenged the clause on the grounds it was an outrageous concept for a client to have to pay for a lack of delivery that was in no way their fault. The judge agreed and the clause was stricken from the contract."
Frowley clapped his hands contemptuously. "Bravo for you. You've wiped out injustice at the hands of those dreaded fertilizer cartels and made the state safe for good farming. But that has absolutely nothing to do with the Intemperance contract."
"It has more to do with it than you think, Mr. Frowley, but let me tell you about the other case I litigated — and lost. It will perhaps hit a little closer to home. You see, one of our clients is a large warehouse type of store — I'm sure you'd know the name if you heard it. Well, in northern California a few years ago there was this amateur inventor who designed and built these little brown gardening wagons."
"Gardening wagons?" Frowley cried. "How much more of this backwoods pseudo-law do we have to listen to?"
"Just this one more," Pauline said. "I promise."
"Sir," Frowley said to Casting, "she's trying to bluff you because that's all she has left."
"Maybe," Casting said thoughtfully. "But let's hear her out. Continue, Ms. Kingsley."
"Thank you. Anyway, this amateur inventor showed his little brown gardening wagon to some folks at the local warehouse store and they agreed to sell it for him. He delivered ten of them and apparently people really liked them. They snatched them up inside of a week. The store was intrigued and they asked him to make ten more. These too were snatched up. The store manager realized he was onto something here so he told his boss about the little brown gardening wagon. His boss told his boss and soon this warehouse store offered the inventor a contract to produce sixty of these wagons a week to be sold in eight stores throughout the region. The inventor's cost for materials for each wagon, at the time, was six dollars. The store promised to pay him twenty dollars for each wagon and they sold them for forty-five dollars.