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I. Introduction
Every layman knows the "Law of Surprise." But it is only in recent years, following the landmark Cintran case In re: Guardianship of C., that this important common law principle has been taken seriously by the courts -- and, more importantly, by legal academia. In this treatise I have laid out the basic elements of the Law of Surprise, and called attention to a number of open questions in its interpretation, in the hope of stimulating further scholarly discussion.
The facts of Guardianship of C. are known to all, but I will nonetheless briefly set them forth. A man entered into a Contract of Surprise with a Witcher, after which he was surprised by the news of his forthcoming child, known in the filings as C. About ten years later, both of C.'s parents had died. Her maternal grandmother sought to obtain guardianship of her in the Probate Court of Cintra. The Court ruled that the Witcher (who was absent but represented by court-appointed counsel) had a custodial interest in C.; thus, the guardianship could not be executed without either his consent or the legal termination of his Right of Surprise. Subsequently, the Court's decision was voided by royal decree.
As the identities of the parties were confidential and impounded, it is neither productive nor wise to speculate on the reasoning behind the action of the Crown. It suffices to say that the Court's decision in Guardianship of C. stands as precedent, whatever the practical outcome may have been for the parties in the case involved. Furthermore, as the decision was not based on Cintran statute or case law, but on fundamental common law principles, it has affected jurisprudence far outside Cintra and indeed within all civilized nations and courts.
The landmark holding in Guardianship of C. gave rise to a new interest in the legal rights established by the Law of Surprise-- but unfortunately also gave new life to a stereotype oft repeated by laypeople: that the Law of Surprise concerns predominately Witchers and the custody of children, and is not a legal principle applicable to more weighty and serious matters.
Not so! As this treatise will establish, the Law of Surprise is content-neutral at common law, easily applicable to cases entirely unconnected to pest removal or to familial matters. While unusual and rooted in mysticism, at heart the Law of Surprise is no different to any other principle of contract law.
II. The Agreement
i. Formation of the Contract of Surprise.
I will only briefly discuss the formation of the Contract of Surprise ("KS"), for at heart it is no different from any other legal agreement, consisting of the elements common to all contracts: offer, acceptance, and consideration. In the case of the KS, however, one of the parties offers as consideration the establishment of a Lien of Surprise.
In exchange for what? As in all contracts, the exchange could be for any good or service valuable enough to serve as consideration. The ignorant stereotype that most KS's are established in life-or-death or otherwise dangerous or portentous circumstances is in no way a formal requirement of the process.
One could very well imagine a contract in which A agrees to sell Blackacre to B, or to produce 100 widgets for B's business, in exchange for which B allows A to establish a Surprise Lien. The fact that no such circumstance can be found in case law or in popular recounting is of no import.
ii. Performance of the Precedent Condition
It is an implicit term of the KS at Common Law that the Surprise shall occur after the contracting party who is not the Surprisee has fulfilled his obligations under the contract. Even if the parties do not discuss the order of performance, this implicit rule is of vital importance if we are to avoid disputes over precisely when the Surprise occurred.
Take, for example, the case of a farmer who contracted with a Witcher to destroy the multi-limbed monsters that had emerged from the forest at night to destroy most of his pumpkin crop. As recorded, when the Witcher had killed most, but not all, of the monsters, the farmer was surprised by the news that he had inherited a significant sum of money. Later, after the Witcher had finished eliminating the monsters, the farmer was surprised to find that his family had not finished all the biscuits his wife had baked earlier that morning as was their usual practice; there was still one biscuit remaining.
A local magistrate ruled that the Witcher was not entitled to any of the inheritance-- but was entitled to the biscuit, by then quite stale. This holding was in full accordance with the canon of ease of construction. For if there is no clear moment when the Right of Surprise begins, there is no way to say which of life's many surprises triggers the rights of the Recipient.
iii. Establishment of the Lien of Surprise
The Lien of Surprise, also called the Right of Surprise, is the right which attaches at the moment the other party completes his contract obligations and ends at the moment of Surprise itself.
This intervening period may be as short as a couple moments or, as one account has it, as long as twenty years. A poor man was tormented by wolf-like creatures which had killed his entire family and destroyed his home and farm. Vowing vengeance, he contracted with a Witcher to destroy the creatures, offering in exchange all that he had: the Law of Surprise. For the following ten years after the Witcher fulfilled his contract obligations the man made his living by working as a sewer cleaner in a nearby city. He encountered no surprises during that time, but at the end of the ten years was surprised by the gift of new shoes from a local religious charity. The shoes, according to the recounting of the story, were ruled by a local authority to be due to the Witcher, notwithstanding the lengthy period of intervening time.
Neither time, nor distance, nor regret on the part of either or both parties to the contract can end the Surprise Lien. It can be ended in only one way-- by surprise.
III. The Surprise
The term "surprise," like so many words often encountered in common parlance, suffers from the problem of an unclear definition. One is tempted to say of surprise, as a well-known justice once said of a particular genre of literature, "I know it when I see it." But given the significant rights conveyed by the Law of Surprise, not to mention the mystical portent said Law is given by ignorant laymen, an unclear definition will not do.
After extensive review of the available caselaw, I am pleased to announce that the term "surprise" can be adequately defined by two criteria: A surprise is something to which the Surprisee (i) posesses a legally cognizable right, (ii) when the Surprisee was not aware of this right prior to to the establishment of the Surprise Lien.
This definition, of course, operates only in the context of the Law of Surprise, not in other uses of the word "surprise", such as the concept of a "surprise party" or "dumpling surprise."
i. The Requirement of Possession
As discussed supra, the operation of the Law of Surprise is not limited to property rights. Indeed, its most famous holdings have been regarding the custody of children. Any recognizable right is sufficient to trigger the possession requirement of a surprise.
Take the case of a woman who, after contracting with a Witcher to remove a ghost from her local community theatre in exchange for a Surprise Lien, was surprised by the news that she had been cast in the lead role of Princess Krystyna in The Dinner Guest's Arrival. The parties jointly agreed that this casting decision triggered the Law of Surprise, requiring the part to be given to the Witcher, who by all accounts performed the role adequately for the full six-week run.
ii. The Requirement of Lack of Knowledge
It is not a surprise if one already knows about it. This simple maxim, so simple that it is known even by the common folk, has caused more confusion than any other in the interpretation of the Law of Surprise.
A right which triggers the Law of Surprise is not one which the Surprisee might expect to encounter in the ordinary course of business. Hearing of the expected delivery of a package, fulfillment of a contract, or harvest of crops, is not a surprise. For in a just world, if perhaps not in practice, should we not all expect these occurances to happen?
This canon of interpretation, however, may not be extended too far. Take the famous story of two travellers, A and B, who united in a Contract for Surprise after A saved B from being trampled by a spooked horse. Later that same day, B was surprised by finding a purse of gold coins in the street. A argued that these coins were due to her -- while B argued that, in a rich neighborhood at night it could not be considered especially unusual, unexpected, or - critically - surprising to find such a thing. The fable leaves the matter of interpretation to the reader, but it is clear, under my proposed canon of construction, that any reasonable court would find for A.
One may not, however, avoid a Lien of Surprise by acts of willful ignorance or "burying one's head in the sand" as the saying goes. Consider the account, published some years ago in a local journal, of a Witcher who contracted with the mayor of a small town to arrange for the removal of troublesome monsters, the nature of which is unspecified in the text. The town being impoverished, the mayor offered in return a Lien of Surprise, which the Witcher accepted.
After the Witcher had fulfilled his contract obligations, according to the account, the mayor and the Witcher were relaxing together in the local tavern. The tavern-keeper approached the mayor and stated (according to the text "in a seemingly rehearsed manner") that the mayor had won a drawing for a commemorative wooden tankard. The mayor responded "I'm surprised!" and handed the tankard directly to the Witcher.
The Witcher later filed suit with a magistrate in a nearby city, who ruled that the drawing for a commemorative tankard, far from being a bona fide surprise, was in fact a conspiracy between the mayor and tavern-keeper to defraud the Witcher by enabling the mayor to "bury his head in the sand" and pre-arrange a surprise for himself. Crucial evidence in this ruling was the fact that the tankard was engraved with the words "I Saved West Mudflat and All I Got Was This Lousy Tankard". The Witcher's Rights of Surprise were reestablished and he later gained custody of the mayor's afterborn child, the news of which the mayor was surprised by during the course of the legal proceedings. What became of the child is not recorded.
III. Conclusion.
The Law of Surprise, due to its lack of serious treatment by scholars, has accumulated a number of ignorant folk stereotypes surrounding its construction. For example, it is sometimes said that the Surprise Lien applies only to "that which one already has but does not yet know about." Not so -- otherwise such surprises, and consequently Contracts for Surprise, would be rare on the ground indeed. For how often is one truly surprised by something which one already has?
Another commonly repeated fallacy is that the interest of the Surprise Recipient need not take the form of a legally cognizable right, such as an interest in property or child custody, but is better explained as a "tie of destiny." Such claims have no place in any serious discussion. Destiny will work its capricious way on the world with or without assistance from the little agreements we make with each other. None of us can claim to speak for destiny. In short, this claim is an attempt to remove the Law of Surprise from the common law and place it in the realm of religious maxims, and this we cannot abide.
Notwithstanding these superstitious claims, however, the review of the case law I have set forth above serves to show that the Law of Surprise is indeed a legally cognizable principle, not the folkloric maxim it is so often dismissed as. I look forward to the day when, with In re: Guardianship of C. as precedent, the Law of Surprise takes its place as a widely-recognized bedrock principle of Common Law on our continent. If not, I will be very surprised.