Raging Abe Simpson and His Misguided Miscalculation in “The Unenforceability of the Flying Hellfish Agreement”
Shockingly, Monty Burns doesn’t seem to honor his agreements
Every week in my newsletter, I answer a legal question from readers.
This week’s question comes from Paris via asking me on the couch and me responding, “If you really want to know, you should fill out the form on the website.” Paris asks:
“Is the Tontine agreement made in The Simpsons Season 7, Episode 22 legal? Abe Simpson and Monty Burns enter into a contract where the last surviving participant becomes the sole inheritor of valuables. Is that legally possible?”
Great question, Paris! Spoilers ahead for those of you who missed this episode when it aired 25 years ago this week.
In case you haven’t seen The Simpsons episode in question, it involves a pact made between nine of Springfield’s men who served together in World War II in Germany as part of a crew called The Flying Hellfish. In the present day (1996), Grandpa Simpson checks his mail and receives notice that someone named Asa Phelps has died. Grandpa yells, “The seventh Hellfish has died!” Then remarks how he is one step closer to “the treasure.”
Grandpa meets Monty Burns in the cemetery for Asa’s sad and poorly attended funeral, where the men each put keys into a monument. A door opens to reveal a box. Inside is a list of nine names, six of which are crossed off, including Sheldon Skinner, Arnie Gumble, Iggy Wiggum, Milton “OX” Haas, Etell Westgrin, and Braff McDonald. Grandpa Simpson crosses off Asa Phelps, leaving only Mr. Burns and himself on the list.
Burns tells him, “Seven gone. As soon as you’re in your press-board coffin, I’ll be the sole survivor, and the treasure will be mine.” Mr. Burns refers to their “gentlemen’s agreement” saying that the crew swore on their lives to uphold it. The two men keep referring to the treasure as the “Hellfish Bonanza.”
That “Bonanza” was made up of priceless paintings by what looks like a Rembrandt with mentions of Monet and Botecelli, that they had taken from a German castle. When the group of men found the paintings during the war, they figured that immediately selling the stolen loot would get them busted. To lay low, the group agrees to hold the paintings in a “tontine” suggested by Mr. Burns.
Ox, one of the soldiers, explains the scheme as, “Essentially we all enter into a contract whereby the last surviving participant becomes the sole possessor of all them purty pictures.”
Fast forward back to 1996 where Grandpa and Bart retrieve the paintings from under the waters of Lake Springfield. No sooner have they come up for air, the paintings are stolen by Mr. Burns. Grandpa Simpson catches up to Burnsy and “discharges” him from the Hellfish. Grandpa says this ouster also kicks Mr. Burns out of the Tontine, so Grandpa declares himself entitled to keep the paintings. His victory doesn’t last long. Soon U.S. government agents show up to return the paintings to the descendants of their rightful owner.
WHAT IS A TONTINE?
A tontine is, not surprisingly, a real thing. Writers for The Simpsons are always bringing in real historical and cultural references. Invented in the 1600s, tontines were ways for people to obtain payouts based on their own mortality. They were also used as investment plans often run by the government in order to fund large scale projects, similar to how municipal bonds are used today.
In a tontine, the government/organizer sets up the structure and maintains the money. People called “subscribers” put money into the scheme. The subscribers receive payments of interest while the pot of money grows. Then as each person dies, the share of the pie and payouts become bigger based on the fewer number of remaining participants. Finally, the last person to survive would be entitled to the payout of the remainder once the rest of the participants died.
The setup is not quite the same as what the Flying Hellfish used it for, but it is similar. This investment structure was invented by and named for a banker and politician from Naples, Lorenzo de Tonti. Though he later had to seek political asylum for participating in a revolt, his name remains tied to the financial setup he created so many centuries ago.
Tontines were popular throughout the years and eventually made their way to the United States. However, in 1905, tontines had devolved into something more similar to a Ponzi scheme. An investigation by the state of New York put restrictions on tontines after an executive of a life insurance company was misusing money from the tontine accounts to fund his lavish lifestyle. This misuse made tontines appear risky, so they became subject to heightened regulation.
COULD THE FLYING HELLFISH USE THIS SET UP FOR THEIR PAINTINGS?
Not likely. Tontines don’t normally hold property. They hold money and pay out dividend-like payments. Instead, what the men may have created was more like a trust. Under the law, a trust is an arrangement whereby a person (a trustee) holds property as its owner in name only for the benefit of one or more beneficiaries.
Under Oregon law, a trust need not be evidenced by a trust instrument. That means that a trust can be created by speaking the trust into words. The initial “trust” may have been created back in Germany, but the men acted in accordance with the trust for years in Springfield. Arguably, it would be governed by Oregon law. Yeah, the Simpsons live in Oregon.
Whether it was a “tontine” in the strict sense of the word or a trust, the Flying Hellfish “tontine” is still an oral contract to which all nine of the Flying Hellfish agreed. The major problem with this oral agreement is a law called the Statute of Frauds.
The Statute of Frauds requires that certain agreements must be in writing to be enforceable. For instance, if an agreement cannot be performed within one year, it must be in writing to be enforceable. Since the agreement was contingent on the deaths of members several years apart, the contract would likely be void under Oregon’s Statute of Frauds law. This means that if the agreement was not in writing, it would not be a real agreement.
The biggest issue with determining legal title to the Hellfish Bonanza is the court’s abhorrence of illegal contracts. Even if it were in writing, it’s based on the underlying illegal act of stealing paintings.
Oregon courts have held that, “If the consideration for the contract or its agreed purpose is illegal or against public policy on its face, it will not be enforced.”
Because the underlying consideration for the Hellfish contract was stolen paintings, the contract is based on illegal consideration and “against public policy.” Contracts are usually considered “against public policy” if they are harmful to society or citizens. Awarding ownership of stolen paintings to one of two thieves would be both illegal and against public policy.
If Mr. Burns or Grandpa Simpson wanted to argue in court that either of them was entitled to the paintings, they would not likely be successful. They are fighting over stolen property, based on an oral contract that does not satisfy the Statute of Frauds. The court wouldn’t likely award the paintings to either man.
Even though Mr. Burns and Grandpa Simpson’s tontine was probably not enforceable, real life tontines are trying to make a comeback. According to the Washington Post, there is a growing set of lawyers and economists that think tontines are the future of retirement savings plans in America. They’re overwhelmingly more popular than annuities, which require participants to bet on their own lives. Tontines allow people to bet against the lives of others, which people seem more enthusiastic about.
In countries throughout Africa, a version of tontines that work like “peer-to-peer savings circles” are an important source of capital for small businesses that would not otherwise have easy access to capital to scale up in size. So while they would not be a good way to hold stolen paintings in trust for the benefit of stubborn old men unwilling to die, tontines are real and are still used to this day.
Thanks for the question, Paris! If you have any other questions, I expect you to submit them through the form and not ask me directly. (Kiddddding!)
Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don’t send those. Love you, but I don’t do that.
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