Abstract
In his article, ‘Coffin Confessions and Contract: Why agreements to divulge secrets post-mortem might be unenforceable’, Mark Giancaspro discusses the recent phenomenon of people being hired by the deceased to perform tasks after their death – including destroying property or disrupting the funeral – and considers whether these contracts are valid and enforceable.
Part one
Purpose: To establish social concerns around ‘coffin confessions’.
Instructions: 1. As a class or in small groups, conduct some research in the media, looking at examples of ‘coffin confessions’. Try to find five to ten examples (they don’t all need to be Australian) and make some notes about the type and level of disruption, the subject matter of the disclosures, and any reported responses from funeral attendees. 2. Break into small groups. In each group, consider the possible views of different stakeholders, including: a) the deceased; b) the ‘coffin confessor’; c) close family members of the deceased; d) people with strong religious beliefs about funeral rites; e) people directly affected by the content of the ‘confession’; and f) the broader community. 3. Come back together to discuss the issues involved. Do you think ‘coffin confessions’ are generally beneficial or detrimental? Does it depend on the circumstances and, if so, which circumstances matter? Should the law prevent these incidents?
Part two
Purpose: To understand how illegality might affect contracts.
Instructions: 1. The article makes the point that, ‘A promise the performance of which would necessarily be illegal is no consideration’. What does this mean? 2. Can you come up with some hypothetical scenarios where this might arise? Use a legal database like Jade or AustLII to see if you can find a real-life example. 3. Giancaspro considers the legality of disrupting a funeral in South Australia, and notes that there are similar laws in other jurisdictions. Research the law in one other Australian state or territory and determine whether ‘coffin confessions’ would be illegal there, using Giancaspro’s analysis as a guide.
Part three
Purpose: To understand privity of contract as a limitation on legal proceedings.
Background: As Giancaspro notes, ‘The doctrine of privity stipulates that only parties to a contract may acquire rights and incur liabilities under that contract.’ However, a recent High Court decision found that people who ‘demonstrate a “sufficient” or “real” interest’ may also be entitled to enforce the contract.
Instructions: 1. Return to your work in Part One. Choose one or two representative examples from the case studies you researched. 2. Considering each of the stakeholders, who do you think would be covered by ‘privity’ of contract? Are there any other groups who might have a ‘sufficient’ or ‘real’ interest, even if they are not parties to the contract? 3. With this in mind, how likely is it that someone who would want to enforce the contract would be able to bring their dispute to court? How likely is it that someone could seek to challenge the contract, and would be able to do the same?