Tonight, I want to do a little follow-up to yesterday's thread on contracts. Last time, we looked at "trivial breach" - the concept that you don't get to pitch the whole contract over a small error.

This time, I want to look at candy. Brown M&Ms, to be specific.

As I said in the earlier thread, small deviations from the contract are not exactly encouraged by contract law, but contract law doesn't normally treat one party to the contract's minor breach as sufficient justification to let the other side out of its contractual obligations.

If - going back to the pipes in the famous case discussed in the earlier thread - the pipe was purchased from the wrong manufacturer, but everyone agrees it's of the same or better quality, the homeowner doesn't get to reap a windfall by stopping all payment as a result.

If the difference leads to damages, you're absolutely entitled to recover - but only to the extent of the damages.

All of that is true, and it's what applies to all the possible deviations from perfect performance that we've seen in the contracts in Vic's case.

But I glossed something over - a scenario someone else pointed to, where the contract agreed to by the parties expressly conditions performance on something seemingly minor.

https://twitter.com/Unlearned_Hand/status/1162011139196227585?s=20

As my learnèd colleague Unlearned Hand correctly points out, while most small deviations in performance are repaired through the payment of actual damages, this is something the parties can, through the terms of their contract, change.

Express conditions don't need to be material, and courts will typically require strict adherence to such conditions. Breach a term of the contract in a relatively minor way, and you're probably OK; breach a condition and it's a very different picture.

And this brings us to the Brown M&Ms. It's a story that's easy to summarize: Van Halen had a provision in their contract rider that said "no brown M&Ms."

But it's even better told in full - so let's let David Lee Roth do just that:

It's a great story: "No brown M&Ms on pain of forfeiting the show," with a real reason - testing that the venue read *all* the requirements well enough to ensure a safe concert - as hidden backstory.

As someone who likes a good story, I love it. As a lawyer...

As a lawyer, there are maybe one or two things that jump out at me.

The first is that I find myself wondering if it matters whether the band really had a good reason for the M&M term.

And I don't think it does. I'm not in the mood to do a deep dive into my copy of Farnsworth, but my instinct is that if the parties can contract for anything at all, an M&M breach would be enough even if there wasn't another motive.

But if the court were to impose some reasonableness obligation on the terms, then an M&M breach, without more serious omissions, wouldn't be enough. (And, of course, as a practical matter it's unlikely that the band would want to cancel without more cause than candy.)

In other words, the clause might be a great marker for the need to tear through and triple-check stuff, but I'm not sure it's all that meaningful as a contract term.

And that's just going off the story. But wait- there's more!

There's part of a relevant contract rider available online. Reading through what's there, it's difficult to be sure if the provision really is an express condition.

http://www.thesmokinggun.com/file/van-halen-1982-backstage-rider?page=1

The first thing that pops into view is that the description of the contract provision that David Lee Roth gives is maybe not completely identical to the document we've got access to:

https://www.snopes.com/fact-check/brown-out/

The M&M thing isn't in the middle of nowhere - it's in the (lengthy) catering section. And it doesn't apply to all of backstage - just the food.

More critically, although it's possible that other, more clear language can be found elsewhere in the contract, the language of the rider itself says that "all provisions must be adhered to strictly," but it doesn't make it clear that these are express conditions.

So it's possible that the M&M rider might be more rooted in contract fable than contract reality. (I'll leave it to the litigators to say if they'd like to try and litigate a brown M&M as an express condition.)

But who am I to get in the way of a great story?

/fin