1. This quote is taken from, Goethe, Johann Wolfgang, Faust (Part One), trans. Luke, David, Oxford Worlds Classics (Oxford: Oxford University Press, 1987) 1700Google Scholar. References in this paper to Goethe's Faust are to this work or to Goethe, Johann Wolfgang, Faust (Part Two), trans. Luke, David, Oxford Worlds Classics (Oxford: Oxford University Press, 1994)Google Scholar. References in this paper to Marlowe's, Christopher, The Tragical History of the Life and Death of Doctor Faustus are taken from The Norton Anthology of English Literature, 4th ed. (Toronto: W.W. Norton & Company Inc., 1979) vol. 1 at 746.Google Scholar

2. Literary and dramatic works include: Marlowe, Christopher, The Tragical History of Doctor Faustus CrossRefGoogle Scholar; Goethe, , Faust CrossRefGoogle Scholar; Mann, Heinrich, Mephisto Google Scholar; Mann, Thomas, Doctor Faustus Google Scholar; Lenau, Nikolaus, Faust: A Poem Google Scholar; Wilde, Oscar, The Picture of Dorian Gray Google Scholar; Heine, Heinrich, Doktor Faustus Google Scholar; Frost, Robert, The Self-Seeker Google Scholar and Valery, Paul, Mon Faust Google Scholar. Operas based on the Faust legend have been composed by Gounod, , Berlioz, , Liszt, , Schumann, , Boito, and Busoni, . Films include Murnau's, F.W., Faust Google Scholar and, more recently, Hackford's, Taylor Devil's Advocate.Google Scholar

3. Note that the German original carries explicit legal overtones, “Bei wem soll ich mich beklagen?/Wer schafft mir mein erworbenes Recht”, literally, “To whom shall I appeal?/Who will grant me my acquired rights?”

4. In this regard, one might consider how prayer is sometimes conducted, that is, by attempting to trade or exchange moral behaviour for divine favour. This, of course, raises the question of whether prayer is, in effect, meant to create a contractual relation between God and man. (Consider, for example, Job 1:9, “Then Satan answered the Lord, and said, Doth Job fear God for nought”)

5. To retain the original nomenclature and to serve as a short-form reference to the author in question, “Faustus” and “Mephistophelis” are used in this paper to refer to Marlowe's Faustus while “Faust” and “Mephistopheles” serve to indicate Goethe's Faust. “Faust” and “Mephistopheles” are also used where discussion is intended to refer to them in general.

6. The exact legal nature of the agreement Faust and Mephistopheles enter into is open to debate. In Marlowe, it is referred to explicitly as a “deed of gift” (II.i, 60 and II.i, 90) or, alternatively, “bill” (II.i, 64, II.i, 74 and V.ii, 65). Yet the agreement between them clearly contemplates something more than a gratuitous transfer. For example, Faustus says, (II.i, 89-92),

Faustus: Then, Mephistophelis, receive this scroll,

A deed of gift of body and of soul:

But yet conditionally that thou perform

All covenant-articles between us both

This is further supported in Marlowe at V.ii, 4-7,

Lucifer: Faustus, we come to thee,

Bringing with us lasting damnation

To wait upon thy soul; the time is come

Which makes it forfeit.

There are in fact numerous conditions to Faustus' surrender of his soul to Mephistophelis in Marlowe (II.i, 95-115). In summary, Mephistophelis is, “..to be [Faustus'] servant, and at his command” (II.i, 99) for a period of “four and twenty years” (II.i., 108), after which time Lucifer will be given, “… full power to fetch or carry the said John Faustus, body and soul, flesh, blood, or goods, into their habitation wheresoever” (II.i, 109-111).

In Goethe, the agreement between Faust and Mephistopheles takes on a somewhat different character. Rather than offer a “gift”, Faust makes Mephistopheles a “bet” (1699-1701),

Faust: If ever to the moment I shall say:

Beautiful moment, do not pass away!

Then you may forge your chains to bind me.

Yet, like Marlowe, this “wager” (1698) originates in Faust's exhortation to Mephistopheles to, “State your conditions, make them plain and clear!” (1654), to which the latter responds (1656-1659),

Mephistopheles: In this world I will bind myself to cater

For all your whims, to serve and wait on you;

When we meet in the next world, some time later

Wages in the same kind will then fall due.

Although the bet is put in writing (1715), it is not clear from the text what legal form the document takes. “The merest scrap of paper meets the case,” says Mephistopheles (1736) and the subject (with two exceptions, 6574-79 and 11613) is never again raised by Goethe.

Clearly, based on these excerpts, it is difficult to determine with any certainty precisely what form Faust's contract with the devil should take, that is, regardless of whether we adopt Marlowe's or Goethe's approach. The challenge to a lawyer drafting that contract (and hence our challenge) is thus first and foremost to accurately characterize the nature and type of legal document required in the circumstances.

There are, of course, several ways to approach this task. For instance, we could take a purely historical approach and attempt, as much as possible, to isolate and examine the exact legal significance of a “gift of deed” or “bill” in the time of Marlowe (or “wager” in the time of Goethe) and, from that standpoint, try to derive an understanding of the nature and type of legal document contemplated by each of those authors. We could then examine the Faust legend in light of the legal issues raised by those types of document. However, I do not wish to pursue that particular approach in this paper. My interest in the Faust legend is not strictly speaking historical; nor does it inhere in an attempt to accurately “reconstruct” Marlowe's or Goethe's interpretation of the legend based on an historical analysis of the law. Rather, as noted in the introduction, I want to explore how both contract law and the dynamics of legal drafting can help illuminate key philosophical issues at the core of the Faust legend. I plan to do so by actually drafting Faust's contract with the devil. To the extent that I refer to the works of Marlowe and Goethe in this paper, it is primarily to provide points of departure for discussion of the relevant subject matter.

For example, it is clear from both texts that Faust and Mephistopheles are contemplating the creation of a contract, that is, an agreement between them which is meant to be binding and enforceable. The elements of offer, acceptance and consideration are all present. In consideration of the transfer of his soul, Faust is offered absolute spiritual fulfilment (see infra notes 19 and 24), which offer he accepts (on certain conditions). It would be inaccurate to suggest that Faust is merely making a gift of his soul to the devil. Clearly, he expects something in return. Nor is it accurate to say that Mephistopheles and Faust are simply wagering that a certain state of affairs (viz., Faust attaining spiritual fulfilment) will come about (e.g., in the way one might bet on the outcome of a horse race). Definite steps are taken by both parties to bring about that state of affairs. To be sure, the Faustian pact is intended to be a contract, the question is: what kind?

Several possibilities suggest themselves, the most obvious being a contract for services. In both texts, Faust bargains for the right to have Mephistopheles act as his servant (see above). Indeed, the action in both dramas turns on Faust's use of Mephistopheles' magic: in the case of Goethe, to seduce his beloved Margaret and, in Marlowe, to satisfy his lust for power. Yet I contend this does not go to the root of their pact. Faust is clearly not looking to simply engage the services of Mephistopheles. Rather, those services are to be provided as part of a more fundamental exchange between the parties.

Indeed, at the root of their contract is Mephistopheles' wish to purchase Faust's soul. For his part, Faust agrees to sell it and sets his price (viz., his “beautiful moment”). That is the real bargain being contemplated by the parties. Mephistopheles' services are merely incidental to that bargain. They are to be “thrown into the bargain”, as it were. Accordingly, I take the position that the Faust's contract with the devil is more accurately characterized as one of purchase and sale and not as one for services. But if it is Faust's soul that is being bought, what kind of agreement of purchase and sale would be most appropriate to that kind of transaction?

Consider that in both texts Faust's soul is treated as a discrete item of property, that is to the extent both Mephistopheles and Faust regard it as something belonging to Faust, subject to his control and capable of being given in exchange for something else. The fact that this may be a literary conceit does not diminish its legal effect when determining the appropriate form of purchase and sale agreement. The difficulty lies in accurately characterizing the legal nature of the property involved. Is it a “good” in the sense contemplated by Sale of Goods legislation? Is it an intangible? A hard asset? A fixture (e.g., to the body)? A debt due? Goodwill?

The cautious approach, legally speaking (and perhaps also metaphysically), is to adopt a position capable of addressing the legal concerns attendant to the transfer of each of these types of property. To that end, I propose, for drafting purposes, to treat the transfer of Faust's soul as one would the transfer of an enterprise and, in particular a business enterprise. Not only will this approach necessitate the inclusion of contractual provisions ordinarily used in the transfer of various types of property (as business enterprises tend to be comprised of more than one type of property), but it also has a certain intuitive appeal, as we generally think of a human soul as a dynamic rather than a static entity, capable of change (and even growth), having a beginning and potentially no end, and irreducible to any empirical object (though still very much “real”). The analogy takes on an even deeper significance if we recall that a business enterprise is capable of being “incorporated”.

As to the form of agreement, the legend suggests an executory contract (as opposed to a spot contract) is the more appropriate in the circumstances. Both Goethe's and Marlowe's texts contemplate a transaction structure consisting of Faust's promise to transfer his soul to Mephistopheles if and when Mephistopheles produces Faust's beautiful moment. The promise is forward looking and conditional; it does not contemplate immediate performance. At the same time, it should be noted that we are not here dealing with a conditional sales contract. Mephistopheles does not first take possession of Faust's soul (at least not literally) only to receive title to it at some later time (e.g., at the time of delivery of the purchase price—the “beautiful moment”). To be sure, the obligation to deliver the purchase price is, however, a condition precedent to the closing of the transaction (viz., the transfer of Faust's soul).

Based on these criteria, our contract thus takes the legal form of an executory, agreement of purchase and sale of the type ordinarily used in the purchase and sale of a business enterprise. The terms and conditions on which the transaction will take place are set out in the agreement itself and have been drafted according to standard commercial practice by counsel on behalf of the purchaser (see infra note 17). I contend that form of legal document is most capable of giving expression to the intention of the parties to the transaction and the reader is invited, in that regard, to consider the specific terms and conditions of the agreement itself with a view to determining their applicability and significance to the Faust legend based on the annotations and comments provided in the accompanying footnotes.

7. Goethe's Faust appears to strike his deal with Mephistopheles on or about Easter (see, for example, Goethe, at 982). It is not apparent from Marlowe's text when Faustus strikes his deal.

8. It is important to ensure that the parties to the agreement are adequately identified as they are the ones—indeed, generally speaking the only ones—at law who will be bound by its terms. In the case of individuals, the person's place of residence is typically used for identification purposes. As well, the person's occupation may also be used. By way of contrast, an incorporated entity is typically identified by the laws of the jurisdiction under which it was incorporated, for example, the “Province of Ontario” or the “State of Delaware”. For our purposes, however, we are I believe dealing primarily with individuals (in the broadest sense) as opposed to “incorporated entities” (e.g., embodied souls). To be sure, this point may be debated on religious grounds (among others), but I have chosen to draft Faust's contract for signature by two individuals as they are within the more immediate purview of the laws reach. Moreover, our contract presumes that Faust is capable, as an individual, of both making the decision to part with his soul (viz., relinquish a part of what defines him as an individual) and actually doing it.

9. In Marlowe, Mephistophelis is cast (alongside Lucifer and Belzebub) as a devil. Further, he describes himself as an unhappy spirit, “… that fell with Lucifer” (I.iii, 73). In Goethe, Mephistopheles identifies himself as “the Devil” (353, 1408) but, when pressed by Faust to give his name, admits no more than that he is “Part of that Power which would do evil constantly, and constantly does good” (1336).

From a legal perspective, it may be that Mephistophelis is in fact the “agent” at law of Lucifer, for it appears, in Marlowe, that he is acting on Lucifer's behalf and with his authority (see, for example, I.iii., 42 and I.iii., 102-104). As a practical matter, however, Faust, as seller, is concerned primarily with the buyer's ability to pay the purchase price. And to the extent that he apparently believes that Mephistopheles is able to do so, the agency issue need not concern Faust. Accordingly, for purposes of our contract we will forgo the agency issue.

10. Mephistopheles describes himself as a “… gentleman from Hell” (1397). See also Marlowe, (I.iii, 79-80),

Faust: How comes it, then, that thou art out of hell?

Mephistophelis: Why, this is hell, nor am I out of it.

11. The historical Faust is thought to have been named, “Georg Faust”. As the legend grew, he became, “Dr. Johannes Faustus”. In Marlowe, he is “Dr. John Faustus” and in Goethe, he becomes “Dr. Heinrich Faust” although it is worth noting that Faust only identifies himself by the name “Heinrich” to Margaret (3414). I have chosen the name “John Faust” to both continue the tradition while at the same time indicating that our Faust is not to be confused with any particular Faust that has come before.

12. Goethe's Faust is a doctor of law, medicine and theology (354-360). In Marlowe, he is a doctor of theology (Prologue, 16).

13. Marlowe, Prologue 13.

14. Agreements of purchase and sale typically contain recitals. Their purpose is to provide a context for the transaction contemplated by the agreement. And while they have no legal effect, the recitals offer supplementary information regarding the motivations and intentions of the parties involved. This may be of importance to a third party to the agreement (a judge, for example) in adjudicating an issue arising from the agreement. Our recitals have been drafted with this in mind.

15. See, Marlowe, lines II.i 39-42,

Faustus: Stay Mephistophelis, and tell me what good

Will my soul do thy Lord?

Mephistophelis: Enlarge his kingdom.

Faustus: Is that the reason why he tempts us thus?

Mephistophelis: Solamen miseris socios habuisse doloris.

[Misery loves company].

see, also, Marlowe, I.iii, 45-52.

16. See, for example, Goethe 1678 and Marlowe, II.i, 65-70.

17. It is Mephistopheles who asks that the contract be recorded in writing. See, Goethe, 1715-1717,

Mephistopheles: One small request—I'm sure you'll understand

It's just in case—I'd like a line or two in your hand.

Faust: Poor pedant! Must it be in writing too?

See, also, Marlowe, II.i, 35 -37,

Mephistophelis: But, Faustus, thou must bequeath it solemnly

And write a deed of gift with thine own blood

For that security craves Lucifer.

Mephistopheles' request is in keeping with accepted legal practice which dictates that the purchaser, as offeror, prepare or oversee the preparation of the offer document, thereby reserving for itself “control” over the form and content of that document. In the legal context, “control” implies the right to set forth the initial terms on which it is proposed the transaction will take place; entertain and, where necessary, implement any changes to those terms by way of amendment of the document; and, determine in what manner and under which circumstances a final draft of the document will be prepared and submitted to the parties for execution. The offeror recognizes that these rights inhere in the ability to actually write the contract.

But is Mephistopheles in fact the offeror? In Marlowe, it at first appears that Faustus makes the offer of his soul to Mephistophelis (I.iii.,91-101):

Faustus: Go bear these tidings to great Lucifer:

Seeing Faustus hath incurred eternal death

By desperate thoughts against Jove's deity,

Say he surrenders up to him his soul

So he will spare him four and twenty years,

Letting him live in voluptuousness,

Having thee ever to attend me

To give me whatsoever I shall ask,

To tell me whatsoever I demand,

To slay mine enemies and to aid my friends

And always be obedient to my will.

There is, however, ample evidence to suggest that the true offer is in fact made by Mephistophelis or, at least, initiated by him (see, for example, II.i, 74). When accused of just that by Faustus, Mephistophelis responds (V.ii, 90-94):

Mephistophelis: I do confess it Faustus, and rejoice.

‘Twas I, that when thou wert i’ the way to heaven

Dammed up thy passage; when thou tookest the book

To view the scriptures, then I turned the leaves

And led thine eye.

In Goethe, it is clear throughout the text that Mephistopheles makes the offer (1639-1645):

Mephistopheles: I don't of course propose that we

Should merely mingle with the common herd;

I'm not exactly a grandee,

But if you'd fancy getting through

Your life in partnership with me,

I shall with pleasure, without more ado,

Wholly devote myself to you.

Our contract has—following tradition—therefore been drafted with Mephistopheles as offeror. However, rather than take the position that Mephistopheles is simply able to dictate his demands (i.e., that Faust is in a “take it or leave it” position), the contract has as far as possible been drafted with a view to ensuring that both parties receive their fair share of the bargain. After all, it is Mephistophelis who says, in what Marlowe's text describes as an aside, “What will not I do to obtain his soul!” (II.i, 73).

18. This Article sets out the basic agreement between the parties respecting the purchase and sale of the Vendor's soul.

19. In Goethe, it is not always explicit that what is being purchased by Mephistopheles is Faust's soul. Indeed, reference is sometimes made to purchasing Faust's servitude in the next world (see, for example, Goethe, 1658). That said, it is Faust's “immortal part” that ultimately is rested away from Mephistopheles and in respect of the loss of which he claims to have not received the benefit of his bargain (Goethe 11825). In characterizing this “immortal part”, Faust speaks variously of his “spirit” (1677), “life” (1702) and “soul” (11500).

In Marlowe, it is clear that Mephistophelis is bargaining for Faustus' soul (II.i, 45-50). It also appears that he is to receive Faustus' body (II.i, 110). However, the text makes it clear that it is Faustus' soul that interests Lucifer (V.ii, 3-6) and that it is his soul that Faustus is in fear of losing (V.ii, 183-185) and bargains away (I.iii 106-107 and II.i. 33-34).

20. The reference to “right, title and interest therein and thereto” is intended to address the possibility that ownership of a human soul may, like ownership of a piece of real property for example, be allocated among various persons according to their respective legal interests. In other words, Mephistopheles is trying to defend against the possibility of the legal divisibility of Faust's soul. In the absence of this wording, Mephistopheles may, for example, find that he has received title to Faust's soul yet be faced with the argument that actual use and possession remains with Faust. Our agreement tries to make it clear that Mephistopheles is to receive Faust's soul in its entirety.

21. This broad-based approach to defining a human soul is intended to resolve any ambiguities regarding what, precisely, is intended to be transferred and, in that regard, to thwart any attempt by Faust (or his legal counsel) to retain for himself any of the things listed. Needless to say, counsel for both parties will want to closely examine and carefully draft the particular inclusions and exclusions. And, just as a diligent lawyer involved in the sale of a business enterprise will want to acquire at least a basic understanding of the type of business that enterprise carries on (thereby allowing him to be better informed about the types of contractual provisions required), legal counsel to both Faust and Mephistopheles would undoubtedly benefit from a background in religion and metaphysics.

22. Both Marlowe and Goethe cast Faust as an accomplished and educated yet world-weary man. “Here is a world for you to shatter,” says Faust to Mephistopheles, “Smash this one first, then let the next be born!” (Goethe, 1661-1662). In both dramas also, Faust wants something more—the “totality” that is “God's alone” and he swears that he will achieve it (Goethe, 1780-1785). In Marlowe, Faustus also wishes to be resolved of “all ambiguities” (I.i., 81) and, following the advice of his “Bad Angel”, strives to be on earth, “as Jove is in the sky/Lord and commander of these elements!” (I.i., 77-78).

23. See, Goethe 1698-1707 and 1770-1775. But see also, Goethe 3249-3250, “Thus from my lust I stumble to fulfilment/and in fulfilment for more lust I languish.”

24. To be sure, determining what exactly is capable of comprising absolute spiritual fulfilment is no simple task, especially given the subjective nature of that determination (i.e., what constitutes fulfilment for one person may not necessarily constitute fulfilment for another). Were payment for Faust's soul to be capable of being rendered merely by delivery of a certain quantity of cash (i.e., by delivery of something objectively determinable), neither party would need to be concerned about spelling out the specifics of payment in great detail. In the circumstances, however, it is in the interests of both parties to attempt to express the notion of absolute spiritual fulfilment in more concrete terms—Faust, because he genuinely wants his moment and Mephistopheles because he recognizes that he does not get delivery of Faust's soul until that moment is delivered. Accordingly, it is in the mutual interest of the parties to agree in advance about the kinds of things capable of comprising the purchase price.

25. How can we (and the parties) determine when and even if Faust has achieved his moment of absolute spiritual fulfilment? That is, how can we know when payment of the purchase price has been made? On the one hand, Mephistopheles could continue to deliver all the things said by the parties to be capable of constituting such payment only to have Faust, in each instance, deny that any of them ever led to the fulfilment he was seeking. On the other, Mephistopheles could simply produce, at random, any one such thing and declare payment to have been made, despite Faust's objections to the contrary. Clearly, an objectively verifiable indication of fulfilment is required to decide the matter, one acceptable to both parties. Following Goethe's text, we have adopted Faust's position that fulfilment be recognized in the act of Faust's declaring that he wishes the moment to which such fulfilment relates to abide for all eternity. Of course, the danger with this formulation from Mephistopheles' perspective is that Faust may never actually say so, even if he has achieved his moment of fulfilment (especially if Faust does not wish to have to perform his side of the bargain). To help protect against this, we have drafted the provision to both encompass an oral and written declaration and to include any declaration to substantially the same effect. The risk respecting the determination of payment is now at least partly shifted to Faust: Now anything he says which might reasonably be interpreted as a declaration that he wishes the moment to abide forever—for example, if he says to a particular moment, “How wonderful to have felt this!” or “I could desire nothing more!”—may amount to an acknowledgment that payment of the purchase price has been satisfied.

26. Both Goethe and Marlowe expressly refer to “pleasure” as one aspect of the fulfilment they seek to acquire from Mephistopheles. See Marlowe, II.ii., 25 and III.i., 63; and, Goethe, 1695. But see also, Goethe 1765-1767, “I tell you, the mere pleasure's not the point!/To dizzying, painful joy I dedicate/Myself, to refreshing frustration, loving hate!”

27. In both Goethe and Marlowe, the first pleasure Faust seeks is the company of a woman. See Goethe 2619 and Marlowe II.i., 140.

28. See, for example, Marlowe, I.iii.,37-40; I.iii., 95-101; II.i, 32-34; and, II.i. 99-102. See, also, Goethe, 1656-1659 and 1689.

29. See, for example, Marlowe, I.iii, 100-115.

30. See, for example, Marlowe, III.ii.,11-13.

31. See, for example, Goethe, 1700 and 2609.

32. See, for example, Marlowe II.i., 23.

33. See, for example, Marlowe II.i., 115.

34. Compare Genesis 3:5, “and ye shall be as gods, knowing good and evil.”

35. Typically, an executory agreement of purchase and sale will specify a place and time of closing of the transaction contemplated by the agreement. However, the nature of the bargain struck between Faust and Mephistopheles makes that impossible, because closing is not dependent on a pre-determined time and place but on delivery of the purchase price whenever and wherever made. Our closing provision has been drafted to reflect that fact.

36. It is one thing to be able to claim to have obtained possession of someone's soul; it is quite another to be able to evidence it for legal purposes. Likely, the best evidence consists in having actual possession of the soul in question (possession, as the saying goes, being nine-tenths of the law). What constitutes actual possession is, however, a question great religious and philosophical minds have debated for centuries. A diligent lawyer will therefore wish to evidence possession by another, supplementary means. Specifically, counsel for Mephistopheles will wish, at closing, to be provided with documentation evidencing legal possession, for example a bill of sale. As well, the delivery or assignment of any birth certificates, baptismal certificates and analogous documentation should be requested at closing. As it is likely such documentation is not transferable at law, quaere whether the vendor should be required by the purchaser's counsel to enter into a trust agreement with the purchaser providing for the rights and benefits under those documents to be held in trust for the purchaser.

37. It may be that Mephistopheles does not wish to acquire certain aspects of Faust's soul—aspects that may be considered by Mephistopheles to constitute liabilities. For example, Faust may owe someone a debt of gratitude. Mephistopheles may not wish to assume that debt but have it remain with Faust. Our agreement has been drafted to address that possibility.

38. It is likely that no jurisdiction governed by mortal law has instituted a tax exigible on the transfer of a human soul. That said, the parties will nonetheless wish to account for any contingencies and provide for responsibility in the event tax is payable. Our agreement has been drafted to address that concern. As well, both parties should seek the advice of qualified tax counsel.

39. Article 2 sets out the representations and warranties of the parties. These are important not only for the fact that they set out the basic expectations of the parties with respect to the property being purchased and the purchaser's ability to purchase them, but have the legal effect of providing a basis for damages (and in some cases, a right of rescission) in the case of an inaccuracy or misrepresentation. Consequently, each party must carefully consider the truth and accuracy of every representation and warranty it is giving and, to the extent possible, try to limit them—both as to number and scope—as much as possible. Generally speaking, the initial draft of a purchase and sale agreement, to the extent that it is prepared by counsel for the purchaser, will contain a large number of broadly-worded representations and warranties relating to the purchased property and the vendor's ability to sell them. Vendor's counsel will usually try to negotiate these to a bare minimum. The success of either counsel in carrying out its respective function is largely dependent on the relative bargaining powers of the parties and their willingness to absorb certain risks (e.g., that the assets are encumbered by third party interests; that they are not in good working order, etc.). Our contract has been drafted to reflect the outcome of what I believe as a commercial lawyer would be a reasonably negotiated set of representations and warranties given the nature of the transaction and presuming both parties are equally desirous of seeing the deal concluded.

40. See Goethe, 1582,

Mephistopheles: I am not omniscient, but I know a lot

41. It is important to Mephistopheles to know that what he thinks he is getting out of the bargain—a mortal soul—is, in fact, what he is getting and that Faust is prepared to represent and warrant to him that is the case.

42. See Marlowe, II.ii.10,

Faustus: If heaven was made for a man, ‘twas made for me!

and, Marlowe, I.i 23,

Faustus: Yet art thou still but Faustus and a man.

and, Marlowe, IV.v, 21,

Faustus: What art thou, Faustus, but a man condemned to die?

43. This particular representation and warranty is designed primarily to ensure that Faust acknowledges himself legally bound and obligated by the agreement. Typically, a purchaser's lawyer will wish to limit the scope of the representation and warranty by excluding situations of bankruptcy or the application by a court of equitable considerations in resolving any dispute regarding the enforceability and binding nature of the agreement. In the circumstances, bankruptcy could, for example, be interpreted to refer to moral bankruptcy, the idea being that, in that event, creditors (e.g., persons to whom Faust owes a debt of gratitude) may lay prior claim to Faust's soul (or a part of it). As well, the inclusion of a reference to the availability of equitable remedies could be interpreted to address the possibility of “divine intervention” on behalf of Faust, that is, justice administered on a basis of celestial fairness as opposed to a strict application of the law as, indeed, happens in Goethe at 11815-11831.

44. This representation and warranty is largely self-explanatory. It is worth commenting, however, that as part of the due diligence Mephistopheles' lawyer will want to conduct in respect of the purchase of Faust's soul, should be included a search of the publicly available records for evidence of any prior or competing interest in the purchased property. For example, Faust may have granted a security interest in his soul to a bank in exchange for a loan. If that is the case, Mephistopheles' lawyer will typically require evidence, on or before Closing, that the bank's interest has been released and discharged. Needless to say, that will require Faust to pay off his debt to the bank prior to Closing or, if that is not possible, out of the Purchase Price at Closing.

45. In Marlowe, Faustus asks himself rhetorically, at II.i. 68, “Is not thy soul thine own?”

46. See, Marlowe, II.ii, 84-88.

Faustus: O Christ, my Saviour, my Saviour!

Help to save distresséd Faustus' soul.

Lucifer: Christ cannot save thy soul, for he is just;

There's none but I who have interest in the same.

47. The purpose of this representation and warranty is to ensure that the Purchaser does not become embroiled in a dispute with any third party about the right to purchase the Vendor's soul. After all, how is Mephistopheles to know that Faust has not already negotiated some prior arrangement with another demon or, indeed, some heavenly power for the sale of his soul, thereby depriving Mephistopheles of the reasonable expectation of the benefit of his bargain. In that event, he would likely wish to seek damages.

48. This representation and warranty is intended to supplement the previous one by asking Faust to guarantee that the sale of his soul to Mephistopheles will not be barred by any license, statute, etc. by or to which he may be bound. Before giving this representation and warranty, counsel to Faust will want to ensure that it has thoroughly reviewed the law in this area (to the extent any exists) and advised his client accordingly.

49. To the extent that the consent or approval of any third party is required, Faust will have to obtain such consent or approval in order for this representation and warranty to be true. If consent or approval is required, Mephistopheles will typically want to obtain something in writing evidencing such consent or approval or else risk being faced with a competing claim at some later time.

50. Because Mephistopheles can only base his decision to purchase Faust's soul on what he has seen of it and because he may be concerned that he has no been shown everything, he has a legitimate interest in ensuring that nothing has been hidden from him. That is the basic premise behind this representation and warranty. Counsel for Faust will typically qualify this representation and warranty to refer to “material” adversity to make clear that damages cannot be claimed for adverse matters of a de minimis character. Of course, what constitutes “material” is left for the parties (or perhaps ultimately a court) to decide.

51. As part of the due diligence process, counsel for Mephistopheles may have reviewed the books and records of Faust including, among other things, his diaries, medical reports, correspondence and so on. To the extent that those documents can be said to represent the character of Faust's soul, Mephistopheles will wish to ensure their accuracy in an effort to better assess the value of his purchase and the price he is paying for it.

52. Because of the breadth of this representation and warranty, it is not always obtained by purchaser's counsel. In both Goethe's and Marlowe's texts, however, it seems Faust has nothing to hide. Indeed, he goes to great lengths to tell Mephistopheles all about himself, even if only to better indicate to Mephistopheles what he is looking for. Accordingly, we have drafted our contract to include this representation and warranty but qualified it with a materiality component.

53. Generally speaking, the representations and warranties required by the vendor tend to be fewer in number and narrower in scope. That is because the primary concern of the vendor is simply to receive payment. A purchaser is rarely obligated beyond that. And as transfer of the purchased property is usually conditional on receipt of payment, the need for extensive representations and warranties is even further diminished.

54. Faust maintains that the moment of fulfilment he is seeking is incapable of being provided by any mortal person (see, for example, Goethe at 1545-1570). He turns, therefore, to the spirit world and, in particular, to the world of demons. This representation and warranty is included to provide some comfort to him that he is actually dealing with one. It becomes all the more important in light of the fact that Mephistopheles frequently appears in disguise (in Goethe he says, “I like to go incognito on most occasions”(4062)) and appears, among other things, as a dog (1312); medieval wandering student (1322); cavalier (1535); and, Faust himself (1847). In Marlowe, he appears as a Franciscan friar (I.iii, 28). Note that Mephistopheles is also often coy about who or what he is. See, in that regard, Marlowe, I.iii, 73-80.

55. See supra note 43.

56. This provision is often hotly negotiated by counsel for the respective parties. Purchaser's counsel will typically try to extend the survival of the representations and warranties for as long as possible while vendor's counsel will seek the opposite. In the circumstances, we are dealing with the possessory right to Faust's soul. And to the extent that both parties conceive of the soul as eternally existing, the appropriate survival period should last for eternity. To do otherwise, would be to allow for the possibility that if a representation and warranty was discovered, after the survival period, not to be true, then Mephistopheles would have no legal recourse under the agreement to sue for damages.

57. Faust and Mephistopheles have entered into an executory agreement with respect to the sale of Faust's soul. That means that although the agreement has been entered into by the parties, its terms will not be performed until some later date. For the lawyers drafting the agreement, this raises the issue of how the parties are to conduct themselves during the interim. The provisions in this Article are intended to address that issue.

58. This covenant is intended to ensure that Faust does nothing during the interim to prejudice Mephistopheles' interest in his soul. For example, it can be interpreted to prevent Faust from adopting a religious faith, becoming a vegan or committing suicide. A similar, though less comprehensive covenant in favour of Faust is contained in the section to follow.

59. This provision is largely self-explanatory. Again, it is intended to address circumstances that may arise during the period between the execution of the agreement and its performance.

60. As purchaser under an executory contract, Mephistopheles will want to ensure that he is not deemed to have assumed any risk of harm to Faust's soul at any time during the period before he receives actual delivery of it. After all, what Faust does with his soul during that period is not within the control of Mephistopheles. Moreover, Mephistopheles will want the right to rescind the contract in the event that material harm comes to Faust's soul. (Note, again, the insertion of a materiality qualification, to prevent against Mephistopheles' recourse to claims of breach of a de minimus nature.)

61. Both parties stand to lose if their pact becomes known. In the case of Faust, there is not only the risk that he will be alienated by others but that he will have forfeited his right to salvation. Mephistopheles would likely fear divine intervention if found out. While a breach of confidence can give rise to, among other things, a claim for damages, both parties would likely be better off seeking an injunction to prevent any threatened or continuing breach. The law of most jurisdictions allows for this if the appropriate case for an injunction is made. Generally speaking, that requires proof of the likelihood of irreparable damage. Clearly, that case could be made out in the circumstances.

62. The conditions to closing are intended to provide the parties with a legally justifiable means to withdraw from the agreement prior to closing. Accordingly, they must identify with sufficient certainty the circumstances in which withdrawal without liability is possible and in whose favour those circumstances operate. By the same token, each party must ensure that the conditions are not drafted in so broad a manner as to allow the other party a “quick out” just because it does not wish to complete the transaction (say, for example, because of changing market conditions). The conditions included are standard in a purchase and sale agreement.

63. The purchaser will typically have more conditions to closing than the vendor in an agreement for the purchase and sale of a business enterprise. That is, in part, because the purchaser is usually not aware of everything concerning the business at the time the agreement is signed. Due diligence investigations during the period between signing and closing often may reveal facts or issues which might cause the purchaser to change his mind about closing. The conditions to closing in favour of the purchaser must be broad enough in scope to encompass these facts and issues, should they arise. Based on what has been said thus far in the agreement by way of annotation, the conditions in favour of the Purchaser set out in the agreement are largely self-explanatory. Note that, for purposes of limiting the Purchaser's recourse to these conditions, the Vendor has added materiality and reasonableness qualifications.

64. Documentation ordinarily contemplated to be completed and exchanged by the parties in connection with the purchase and sale of a business enterprise includes: certified copies of corporate resolutions authorizing the purchase and sale and related transactions (where either the purchaser or the vendor is a corporation); third party consents and releases; conveyance documents such as bills of sale or assignment agreements the function of which are to actually convey the purchased property from the Vendor to the Purchaser pursuant to the terms of the agreement; and, documentation evidencing payment of the purchase price (e.g., a receipt and direction regarding where, in what manner and to whom payment is to be made). In the circumstances, the parties together with their respective legal counsel will have to set the agenda as to which, if any, of the foregoing documents are to be delivered at closing and, more importantly, what the form and content of those documents should be.

65. In the case of the sale of an ongoing business enterprise, the purchaser will typically require delivery of the books and records of that enterprise. Among other things, those books and records can provide an account of the history of the business and, to that extent, some indication of the direction it may be heading in, subject to any actions taken by the purchaser. Mephistopheles may wish to receive delivery of the books and records relating to Faust's soul (e.g., his diaries, correspondence, etc.) for analogous purposes.

66. Again, Mephistopheles contemplates the possibility of divine intervention. (See infra note 76.)

67. As was the case with the representations and warranties, the conditions in favour of the Vendor under an agreement of purchase and sale for a business enterprise tend to be less comprehensive than those typically requested by the Purchaser. That is because the Purchaser's only real concern is to get paid at closing. To that extent, the Vendor need only require assurance that the Purchaser be ready, willing and able to pay the purchase price at closing. The conditions to closing in favour of the Vendor set forth in the agreement are, as such, self-explanatory.

68. The inclusion of an indemnity provision in the agreement is intended to provide a party a basis for damages in the event of a material breach of a term of the agreement by the other party. This is particularly important in a situation where liability to a third party might arise for which a party to this agreement may seek recompense from the other party to this agreement. For example, suppose Mephistopheles is faced with a claim made by some divine authority seeking damages from Mephistopheles for what it argues is a prior right of ownership of Faust's soul. Mephistopheles will undoubtedly wish to seek recompense from Faust on the basis that he misrepresented to Mephistopheles that he is the legal and beneficial owner of his soul and will, at the Time of Closing, had good and marketable title thereto, free of any and all interest of third parties (see Section 2.1(c)).

69. Often pejoratively referred to as the "boilerplate”, the terms of a purchase and sale agreement typically classified under the heading “General” are as important as any other term of the agreement. As the heading suggests, they are intended to cover matters of general applicability to all contracts.

70. This provision is self-explanatory and is included in the agreement primarily for clarification purposes where matters of legal interpretation and construction are concerned.

71. The legal doctrine of severance allows for illegal, invalid or unenforceable parts of a contract to be severed while retaining the validity of the rest of the contract. So that, for example, if the assignment of Faust's birth certificate (see Section 1.4) is void as illegal, the whole of the agreement is not voided on that account and the transfer of Faust's soul can still take place.

72. This provision is included to clarify what constitutes both an intentional relinquishment by a party of a right it has under the contract or the amendment of a term of the contract. The point is to avoid the possibility that either of these types of action may be undertaken in any other manner than as set out in the agreement. For example, Faust's right to confidentiality (see Section 3.5) should not be deemed to have been waived because he may have remained silent in the face of Mephistopheles' disclosure to another demon of their pact.

73. The purpose of this provision is to nullify any presumption of assignability on the part of either party. So, for example, if Mephistopheles wished to assign his rights and obligations under the contract to another demon, he would first have to obtain Faust's prior written consent to do so. Needless to say, Faust will wish to do all he needs to satisfy himself that this new demon is able to perform the contract to the same extent that Mephistopheles could.

74. The provision is included to ensure that the rights and obligations of the parties continue in effect to bind a new party in the event of death, assignment or any other case resulting in the substitution of a party under the agreement. For example, if Faust were to pass away on delivery of the purchase price, Mephistopheles would hold the executors of his estate to be bound by the terms of the agreement on the basis of this provision. So that, for example, he could demand delivery of Faust's books and records of them (see Section 4.1(d)).

75. This provision is self-explanatory. Its purpose is simply to clarify the manner of giving notice under the agreement. Needless to say, Faust may wish Mephistopheles to provide a more specific address, one capable of being reached by mail or a courier, for example.

76. As a general rule, parties to a contract prefer to choose both the law and jurisdiction for the resolution of any disputes under a contract. Once established, they determine how the contract will be enforced. What the governing law should be in the case of Faust's contract with the devil is not an easy question to answer. Consider, however, Faust's, words to Mephistopheles (1413-1415):Google Scholar

Faust: So even hell has laws? Good, in that case

One might conclude a pact with you

Gentlemen, and a guaranteed one too.

In Goethe, Faust appears willing to allow any dispute between the parties to be submitted to the laws of Hell. This suits Mephistopheles who confesses his fear of the courts of the “High Assize” (3715) which were thought to operate under divine authority. Ironically, in the end it is “a voice from above” (4611) that decides the issue, thereby denying Hell's authority and asserting its own by carrying Faust off to heaven (11825).

In Marlowe, there is no salvation for Faustus because Heaven does not intervene. While no specific reference is made to the laws pursuant to which Faustus' agreement with Mephistophelis is enforceable, various passages allude to Hell as the governing jurisdiction. “Faustus” says Mephistophelis, “I swear by hell and Lucifer/To effect all promises between us.” (II.i., 93-94).Google Scholar

Unlike in Faustus', Goethe appeal to God is ignored (V.ii., 173-175).Google Scholar Indeed, it is ignored precisely because the parties have chosen to have the agreement governed by the laws of Hell, for Mephistophelis informs Faustus-when Faustus, seeks to breach their agreement-“Christ cannot save thy soul, for he is just;/there's none but I have interest in the same.” (II.ii., 87-88).Google Scholar The last line of the drama emphasizes this point by suggesting that Faustus', tragedy lay in his having practised, “more than heavenly power permits” (V.iii., 27).Google Scholar

77. The use of the term “exclusive” in these circumstances is intended to convey the parties intention that no other authority has the power to decide an issue under the agreement. This would, of course, include divine authority. Although this may not be to Faust's advantage, Mephistopheles would likely insist on this exclusivity given that any other court would likely not find in his favour, especially one convened by virtue of divine authority. Faust will simply have to live with this clause or risk being accused of trying to find an “out”.

78. This provision is meant to ensure that the parties perform their obligations under the agreement at the time those obligations are required under the agreement to be performed, failing which a party may sue a breaching party for damages or termination of the Agreement. In the context of the Faust legend, the phrase "Time is of the essence of this Agreement” has a more immediate significance, for Faust makes time the very basis of his pact with Mephistopheles (Goethe, 1700):

Faust: If ever to the moment I shall say:

Beautiful moment, do not pass away!

Then you may forge your chains to bind me,

Then I will put my life behind me,

Then let them hear my death knell toll,

Then from your labours you'll be free,

The clock may stop, the clock-hands fall,

And time come to an end for me.

Further, at lines 1754-1755, he says to Mephistopheles, “Let us plunge into the rush of things/Of time and all its happenings” and to Faust's, Margaret beloved, he says (3191-3194):Google Scholar

Faust: To give oneself entirely and to feel

Ecstasy that must last for ever!

For ever!-For its end would be despair.

No, never ending! Never ending!

Faustus, Marlowe's grants his soul to Lucifer after, “… four and twenty years being expired” (II.i.108).Google Scholar However, it is worth noting that this objective approach is quickly abandoned by Marlowe, in favour of a more subjective notion of “lateness”. For example, shortly after making his deal, Faustus, is told by the “Good Angel” to repent, “… yet God will pity thee” (II.ii., 12).Google Scholar The remainder of the text finds Faustus, wondering whether, in fact, “Is't too late” (II.ii, 79). See especially V.ii, 69-71,Google Scholar where, upon being asked why he had not made an appeal to God for salvation, Faustus says:

Faustus: Oft have I thought to have done so, but the

devil threat/ened to tear me to pieces if I named God,

to fetch me body/ and soul if I once gave ear to

divinity; and now 'tis too late!

Even as he acknowledges his impending doom, Faustus, holds out the hope that it is not too late, noting (IV.v., 25),Google Scholar “Tush, Christ did call the thief upon the cross!”

In both Goethe and Marlowe, time is of the essence of the agreement. Our contract is able to preserve that concept without detracting from its various levels of meaning.

79. This provision is typically included to provide the parties certainty with respect to the rights and obligations they are assuming. This is of particular importance to the parties given that negotiations between them-to the extent that they took place in the language of Goethe and Marlowe-involve the extensive use of literary devices (e.g., metaphor). That, in turn, tends to diminish the certainty attendant to ordinary speech. One of our tasks, in this paper, has been to try to translate the intention of the parties into plain language. Given the nature of the subject matter, this, as we have seen, is more easily said than done.

Compare Faustus', declaration, “Consummattum est”, in Marlowe, , II,i, 74.Google Scholar

80. Compare Marlowe, II.i, 112-113:Google Scholar

Mephistophelis: Speak, Faustus, do you deliver this as your deed?

Faustus: Aye, take it, and the devil give thee good of it.

Compare also Faust, Goethe's who reluctantly agrees to a written pact while at the same time denying the validity of the written word (1715-1730):Google Scholar

Faust: Poor pedant! Must it be in writing too?

Is man's plighted word a thing unknown to you?

My spoken word must rule my whole life's course

For ever: is that enough?

The world streams on with headlong force,

And a promise arrests me. What strange stuff

Of dreams composes us! A pledge that binds

Is a thing rooted in our minds

And we accept this. Happy is the man

of pure and constant heart, who can

Regret no choice, no loss! But parchment signed and sealed

Are ghosts that haunt and daunt us; the word dies

Upon the very pen we wield,

And wax and leather tyrannize

Our lives.

81. The purpose of the attestation is to ensure that the parties expressly assent to the terms of the agreement. That level of assurance would definitely be required in an agreement of the nature contemplated by the parties.

82. As a matter of legal practice, individuals are sometimes required to place their legal seal on a document. The intent is to evidence the giving of consideration. The act of sealing typically involves affixing a small red adhesive (about the size of a pea) next to one's signature. Compare this to Mephistophelis' urging Faustus, to, “… write a deed of gift with thine own blood, for that security craves Lucifer” (II.i.36-37).Google Scholar Similarly, in Goethe, , Mephistopheles instructs Faust, , “And-for your signature, a drop of blood” (1737).Google Scholar

83. Anyone contemplating a similar agreement of their own would do well to remember the final lines of Marlowe, , (V.iii, 23-27),Google Scholar

Faustus is gone: regard his hellish fall,

Whose fiendful fortune may exhort the wise

Only to wonder at unlawful things,

Whose deepness doth entice such forward wits

To practice more than heavenly power permits.