lucid interval and blackstone and williston on lunatics

We use the phrase "lucid interval" today almost always in jest. "In one of my lucid intervals I managed to get some work done." Or, in the joke, where boy says to girl he really is no longer interested in, "Your mind is like lightning--one flash, one lucid interval, and then complete darkness." The term is occasionally found in psychological literature today, but if we probe its history more deeply, we come to rest squarely in the realm of law. The purpose of this essay is to show the variety of its usage in our Anglo-American legal tradition.

Getting Started

I came across the term this time around, of all places, in an early treatise on the Law of Sales. This takes some explaining. If you study the history of sales law in America, you discover the Uniform Sales Act ("USA") of 1906, authored primarily by the melancholic but long-lived Harvard Law School Professor Samuel Williston (1861-1963). This was the first attempt at codification of sales law, a precursor to Article 2 of the Uniform Commercial Code, completed in the early 1950s. Shortly after the publication of the Uniform Act, Williston followed up with a 1300-page treatise on the Law of Sales (1909) in which he painstakingly went over each article of the Act of 1906, copiously documenting every phrase with cases and comments on cases.

Section 2 of the USA speaks about a favorite topic for contracts/sales law teachers at the time--what is called "capacity to contract." That is, the law will not permit everyone to make a contract or engage in a final or definitive purchase of goods. The parties to a contract/sale have to have legal "capacity to contract." In good late-19th century/early 20th century fashion, Williston goes through the five categories of people limited in their contracting capacities: (1) infants; (2) lunatics; (3) drunkards; (4) married women; and (5) corporations. In the words of the regnant text of jurisprudence at the time, Thomas Erskine Holland's Elements of Jurisprudence (1st ed. 1880), these were "abnormal" categories of people; abnormal because they deviated from the "standard" or "norm." In his book Holland even had a diagram showing what it meant for a person to be abnormal. He plotted as the "y axis" the standard person, the male with full privileges of citizenship. Various lines going off at different angles from the y axis represented these categories of "abnormal" people (i.e., people falling away from the "norm."). It doesn't take a feminist today to look at this categorization and be outraged with the classifications that the common law assumed.

Well, back to lucid intervals. I need one at this point. In his 1909 commentary on Section 2 of the Uniform Sales Act, Williston considers at length the capacity of a lunatic, as they were graciously called at the time, to sell or buy goods. I want to take my time expositing Williston here because his approach was the dominant one only a century ago, when sales law became codified. In addition, his quaint use of language suggests that within 100 years it may be difficult for people to look at our "scientific" attempts to clarify concepts without their risibilities being affected (as the 19th century would say).

Williston on Lunatics

He has almost as much to say about lunatics as he does about infants. The question he is considering has to do with under what conditions a lunatic who makes a contract for purchase/sale of goods while under the influence of his lunacy may later disaffirm the contract. He begins with the "old rule" from Coke in the 17th century, a rule that Chancellor James Kent in early 19th century America said had been "exploded," that a lunatic would never be able to show later the invalidity of his contracted acts because "to do so would be to stultify himself" (p. 31). I have written an entire essay on "stultify" here, but what Coke means is that a person can't later try to excuse or justify his earlier conduct by saying, "Oh, I was insane then." It is the 17th century version of "The Devil made me do it." However, by the 19th century, this simplistic approach to the question was discarded, and so Williston was confronted with the question of what purchases/sales of lunatics could subsequently be disaffirmed. Come to think of it, with the Christmas season buying frenzy right around the corner, this isn't such a bad question, is it?

Well, back to Williston. Because the hard and fast rule laid down by Coke was no longer accepted (my, how modern we are, he must have thought), debate raged over whether contracts/sales of lunatics would later (when the lunatic regained his senses) be void or merely voidable. You may think you are entering into a vast void when you run into this kind of language, but it is the way law talked (and may still talk in some circles). Some would argue that since a lunatic was "non compos mentis" when he made a contract, executed a deed, endorsed a bill of exchange, etc. that he didn't bring to the table the requisite contracting capacity, at least as that concept was defined in the early common law. Thus, a lunatic's contract or deed is absolutely void. It is as if no contract was even made.

A Detour

But we can't look at lunatics straight on and their capacity to make a contract/sale without realizing that one of the big changes in contract law history of the 19th century was to move from a "subjective" to "objective" view of contracts--a development which would eventually affect how contracts of lunatics were considered. That is, before the mid-19th century the dominant theory of contract was that it was a "meeting of the minds" between two people. You not only shook hands in your agreement, but you intended the same thing in your agreement. Your minds "met." Thus, the role of a court reviewing a contract for validity before 1850 would have been to discern the "intent of the contracting parties"--i.e., what they thought they meant by their agreement. The agreement didn't need to be in writing in order to be valid, but there needed to be a shared understanding of what was going on.

We see immediately how, under this view of contracts, the contracts of lunatics could be held to be void ab initio or, in other words, no contracts at all. Because he was not of sound mind, his mind couldn't mean anything and there could have been no "meeting of the minds" between a sane person and a lunatic. Isn't it nice how neat our categories are? Well, in any case, this is why there was a long tradition at common law that contracts/sales of lunatics were void. They were void because no contract was made between the lunatic and the sane person, because there could be no "meeting of the minds" of a sane person and a lunatic.

But then, in the mid-19th century a different view of contract developed, and this is the view that is behind Williston's great work on sales and his multi-volume work on contracts. Most think that his treatise on contracts is the most significant treatise in the history of American law. In that treatise he touted the new "objective" view of contracts--that validity of a contract doesn't relate to the subjective intentions of the parties but to what was actually said. If the words on the paper are capable of a singular rational meaning, discoverable by a jury, then a contract will be valid, whether or not the individual subjects thought they were "on the same page." This "objective" view of contracts had a dramatic effect on the law of lunatics, which will relate to "lucid intervals," as I promise I will show in the next essay.

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