Contracts of Intellectual Gratification – A Louisiana-Scotland Discovery

The study of contracts of intellectual gratification in Scotland and Louisiana shows that moral damages ex contractu play an unappreciated role in the protection of personality interests. Historically, tort law has been more closely identified with protecting personality interests, and to be sure it remains the dominant way these rights are thought about. Through a tort prism we see personality rights as rights erga omnes, namely, as absolute subjective rights that others must not invade. This is quite different from a contractual viewpoint. A contractual vision of personality interests allows an individual the freedom to stipulate for those interests he or she wishes to create, secure or enjoy, even if no legislator or judge has thought fit to declare such interests worthy of protection. These need not be particularised categories like privacy, honour and dignity, but relative interests of various weights. In this sense contract concerns the pro-active personality creating interests through the agreements parties enter into. Here we may think of personality rights as plastic and varied as the parties may conceive. Both Louisiana and Scotland have steered a middle course in creating an exceptional category of contract in which these personality interests receive protection. Louisiana created the exception in the early nineteenth century, while Scotland created it through a decisional breakthrough in the 1970s. It is interesting to observe, however, how little difference these starting points made in the final analysis. The judges labouring with an old code text arrived, despite a seriously mistranslated code, at approximately the same position as their distant brethren reached operating without any text at all. The latter found a gap in the “common law” of Scotland and filled it with a series of precedents, while the former encountered gaps in an ambiguous code and poured in new meaning. Yet the Scottish judge might not have not recognised the existence of any gap unless he was already informed, at a deeper level, by the liberal Scottish tradition on solatium, and the Louisiana judge might never have perceived the gaps in the text without the context provided by the code and the tradition. The judges in both systems next faced the issue of stating the boundaries of the exception with clarity and of keeping the category stable and within reasonable limits. Both employed the “object” of the contract as the basis for recognising contracts of intellectual gratification. In Louisiana the object evokes the wider connotation of “the cause” of the contract, while in Scotland it would not have that overtone, yet this produced little or no divergence in approach. A common problem was to settle upon the exact qualifiers shaping the parameters of the exception. The reasoning was almost identical. The judges realised that the object of a contract is typically of mixed purpose, and it would be overly restrictive to require the plaintiff to prove that his or her exclusive, sole or entire purpose was to seek intellectual gratification. Accordingly, the Scottish and English cases say it is sufficient if “a major or important object” of the contract is to give pleasure, relaxation or peace of mind. The Louisiana judges say it is enough if plaintiff seeks to gratify “a significant” interest of that type. The Louisiana judges found the qualifier in the guise of interpreting the legislative will; the Scottish and English judges found theirs in the course of an inductive search for the correct principle. What we seem to have witnessed is the creative process in two mixed jurisdictions which balanced their dual traditions in similar ways and with similar results.