The Squid Game of contract law – can you digest it at all?

It is laughable that a childhood game has taken centre stage in people’s lives all around the world. From people making a  beeline to the Squid Game pop-up store down Rue d’Alexandrie in Paris, to the sudden surge in demand for green tracksuits on Etsy, a nostalgic and innocent childhood game has taken the world by storm. Suddenly, the traditionally mundane shapes of triangle, circle, and square have become perversely attractive. Indeed, the dystopian K-drama series, Squid Game, seems to have completely captured the global zeitgeist – partly providing some reprieve from the serious discourse of the pandemic but also inviting us to reflect on humanity, compassion, and our conception of money. Whether or not one ascribes to the notion that ‘money makes the world go round’, there are some clear contractual issues in the plot which would have made the game implausible in real life.

Considering consideration

Recall that in the first episode, Gi-hun meets an enigmatic ‘missionary’ who is a game recruiter in disguise. After playing a few rounds of ddakji with Gi-hun, the recruiter reveals Gi-hun’s gluttony and desperation for money. The recruiter thus presents Gi-hun with an offer to participate in a game. This was followed by giving him a business card with three symbols on one side and a phone number on the other. Later in the night, Gi-hun phoned the number to accept the offer which was followed by him getting knocked out with sleeping gas and being brought into a massive dormitory with 455 other players. 

However, was a contract between Gi-hun and the recruiter really established in this case? English lawyers may be hesitant to find consideration – the price of the promise – from Gi-hun. According to Lord Denning, consideration must be ‘adequate but not sufficient. This phrase may ruffle the feathers of some common law students. But Sir Edward Coke further explains, “the gift of a horse, hawk, or robe, in satisfaction, is good” for consideration because these items may be more beneficial to the other party than giving actual money. Fret not, understanding the concept of consideration is easier than going through a tug of war.  As long as parties exchange practical benefits, consideration is satisfied. What then, is the practical benefit Gi-hun has to offer here? Could it be the satisfaction of the Big Boss who created the game? If so, can happiness amount to practical benefit? To add another layer of complexity here, which is the real party that Gi-hun is contracting with? Is it the recruiter or the Big Boss of the game? Is the recruiter then an agent of the Big Boss, turning this simple offer and acceptance into a three-party contract?

A mess under duress

In the same stroke, a seemingly more officially written contract was included in the first episode. Gi-hun’s life was turned into a complete mess when he owed loan sharks 160 million won and the bank, an additional 250 million won. Much to the dismay of the viewers Gi-hun was vehemently beaten up by the loan sharks and made to sign away his physical rights. To be more specific, Gi-hun’s blood was smeared onto the written contract, meaning if he failed to pay up, his physical rights would be abrogated.

Had Gi-hun been more educated in contract law, he would have been unbothered, simply because a contract was not concluded here. At this juncture, the cynics may point to the fact that although regrettable, an agreement can in fact, be proven by the party’s signature. Since, in the absence of fraud, it is wholly immaterial that the person, party to the contract has not read the agreement nor understood its content. This, however, is an outdated stance, for, in concurrence with Lord Denning, to follow such a rigid rule would profess a “bleak winter for our law of contract”. 

Moreover, Gi-hun’s contract was concluded under duress. Duress occurs when one party exerts improper pressure on another party and that party feels that they have no choice but to enter into the agreement or transaction as a result. To illustrate, in the case of Barton v Armstrong [1976] AC 104, the Privy Council had set aside the contract, for duress because Armstrong had threatened to kill Barton if he did not sign the contract. Gi-hun would only be required to prove that he was threatened by the loan sharks, which led him to enter into the contract, notwithstanding the fact that he did not personally sign it. 

Unconscious about unconscionability?

Contracts – offers and acceptances – continue to manifest themselves throughout episode two. With a red and green button in front of them, all players are given an “offer” to democratically vote on whether they want to resume the game after the first blood bath. Freedom to contract is reinforced in this scene, but is this true freedom? Perhaps, an analysis to the consent form clauses will shed some light to this pertinent question:

Clause 1: A player is not allowed to stop playing 

Clause 2: A player who refuses to play will be eliminated 

Clause 3: If the majority agrees to stop playing, the games are allowed to end.

Prima facie, the above clauses appear to be conflicting. It seems inconsistent that a player is prohibited from quitting the game individually, but can do so collectively. In any event, any doubts surrounding the true construction of the contract will invoke the contra proferentem rule – interpretation against the draftsman. 

Upon closer inspection, the contract is laced with a strong degree of unconscionability. It does not require a lawyer to realise that the bargaining power of each individual player is much weaker than the creator of the contract. While English contract law is often seen as more adversarial in comparison to its continental European counterparts (operating on the premise of good faith). It should ultimately be seen as a shield and not a sword. Lord Denning notes that “there is vigilance of the common law which, while allowing freedom of contract, watches to see that it is not abused.” The flipside of freedom of contract is protection. Such is to create a bulwark of defence for the weak, the foolish, and the thoughtless from imposition and oppression. This is the exact position the squid game players find themselves in, a pack of impoverished individuals bereft of hope. Perhaps, except for player number 001 who was just going in for a good time.

Red light, Green light, Amber light?

Ultimately, the purpose of this article is not to bore the readers with legal jargon or bewail the exploitative manipulation of squid game, but rather, to aptly demonstrate the easy application and relevance of contract law. While the rules of contract law are not as simple as stopping or going upon seeing the flashing of red or green light, we can see contract law moving at a moderate amber-light pace. As cautious as hopscotching on glass, contract law evolves to accord greater protection for those who lose the marbles.