The Law of Surprise: what is it, and could it ever be legally enforced?

February 17, 2020 admin

The Law of Surprise is a confusing but key plot device in The Witcher series. But could it ever constitute a legally-binding agreement?

The Law of Surprise originates from the mind of Polish author Andrzej Sapkowski, popularised in the The Witcher series. The series has hit international consciousness through successful adaptations into both video games and, as of January 2020, a hugely popular Netflix series.

The “Law” itself is inspired from Polish and Slavic folklore, and in practice, follows the basic principles of a contract – a transaction that amounts to an exchange of services for payment. So naturally, as both lawyers and box-set enthusiasts, this got us wondering: is there any way this could be a legally-binding agreement outside the confines of fantasy?

What is the Law of Surprise?

Here’s how the Law of Surprise is described in The Witcher wiki:

The Law of Surprise is a custom as old as humanity itself. The Law dictates that a man saved by another is expected to offer to his savior a boon whose nature is unknown to one or both parties. In most cases, the boon takes the form of the saved man’s firstborn child, conceived or born without the father’s knowledge.

The terms of surprise can be defined as one of two things:

  • “The first thing that comes to greet you” when returning home – perhaps a dog, a ‘halberdier’ at the gate, even your mother-in-law, or
  • “What you find at home yet don’t expect” – perhaps a lover in the spouse’s bed, or indeed, a child.

In The Witcher, a number of characters receive payment, often in return for saving a person’s life, in the form of the Law of Surprise: something the indebted person is “surprised” to find upon his return home.

The potential cases of Geralt of Rivia v Duny, and Duny v King Roegner

As the quote suggests, and in the case of the plot itself, payment indeed ends up being the hand of a daughter, when Geralt of Rivia (the titular Witcher himself) saves the life of Duny. This is where the relationship between and child-princess Ciri (daughter of Duny) originates, with Ciri becoming bound in destiny to Geralt.

To compound matters, Ciri’s mother – Pavetta – was also ‘payment’ in a separate case of the Law of Surprise, whereby her father – King Roegner – had agreed to repay Duny after he saved the king’s life by the terms of the same law .

Clearly, the whole attempt to apply the Law of Surprise to any kind of real concept of law is thrown out by simple virtue of the fact that it is most certainly not legal to offer humans as payment – at least in 21st century English & Welsh law. But that aside, now we know what the Law of Surprise is all about, let’s dissect the other, less obvious, legal issues.

Issues of scope, timing and default: what is actually being agreed?

Even in the world of The Witcher, as the quote above describing the law of surprise suggests, there’s variation in what constitutes the ‘surprise’ element. Is the indebted offering up the thing that first greets them, or is it what they return to find but did not expect?

For the benefit of the service provider – in this case, the party that has saved the life – for the agreement to be enforceable, this would have to be clear at the point that the agreement becomes effective.

Without such clarity, the indebted could easily manipulate the vague concept of surprise to their advantage: “oh, well, I suspected my wife might have been pregnant when I left for the war. However, I didn’t expect she’d take in a stray cat, so that can be your payment instead.”

Of course, a counter argument could be that this is a fair play in terms of fulfilling the concept of a ‘surprise’, where the payment should be unknown to both parties at the point of agreement. Regardless, both parties would need to be clear on the scope and definition of surprise for the agreement to be truly enforceable.

Perhaps more pressingly is the issue of timing: in both cases in The Witcher, the agreement to make payment or reward under the Law of Surprise is only made after the service (the saving of a life) has been rendered, with no reference beforehand that the offer to complete the service was conditional on the payment. Which brings us to wonder: what is the consequence of default on the agreement?

Issues of evidence and guarantorship: who’s to know that the agreement was real?

Contrary to popular belief, verbal agreements are legally binding under jurisdiction of England and Wales. However, the main risk with verbal agreements is proving their validity in court.

In the potential case of Duny v King Roegner, the issue is compounded by the fact that the King not only kept his knowledge of the verbal agreement a secret, but is also deceased when Duny comes to collect his payment. Despite this, Duny expects the surviving Queen, Calanthe, to fulfil the terms of the Law of Surprise as the agreement’s guarantor.

Indeed, although in modern law, the Queen’s initial decision to execute Duny in the palace’s grand hall would not be considered a reasonable means of terminating the agreement, no doubt she would have an inarguable case for getting the perceived agreement thrown out via court. For Duny’s sake as the service provider, it goes to show the importance of getting an agreement in writing.

Conveniently for the plot, it so happens that Duny’s payment – Princess Pavetta – is already in love with him and quite willing to be wed, avoiding any potential issues relating to the obvious unenforceable nature of Queen Calanthe’s guarantorship.

A better case of the Law of Surprise

However, not so conveniently for Duny, in any potential case that would brought about by Geralt for his claim on the Law of Surprise, the verbal agreement was made in front of a grand hall, full of witnesses – many of whom independent from the case at hand.

Additionally, at the point of the agreement being made, the parties even go as far to immediately (albeit, accidentally) identify the precise nature of the payment itself – as at that very moment, Duny discovers that Pavetta is pregnant with Ciri.

As such, while the vague and verbal nature agreement may still present problems with enforceability, no doubt Geralt would have a stronger case for litigation of the agreement.

Of course, in reality, although the validity of the agreement may be upheld, Geralt would soon come across issues about forced marriage, and Pavetta and Duny – as Ciri’s (presumed) parents – would be committing an offence if they were to force their child surprise to marry someone.

There are many organisations that can help in such circumstances, but in the UK, we would recommend that Ciri’s first port of call should be the Forced Marriage Unit, whose number is 020 7008 0151.

If you’re dealing with an agreement as vague as the Law of Surprise, before signing anything, speak to us for advice.

Importantly, Amgen Law has provided this Insights article for information only and nothing in it should be constituted as legal advice. However, if you would like to discuss any of these issues further about a legal matter that is affecting you, please get in touch with us directly using the form below.

    Note: a version of this Insights article originally appeared on LinkedIn Pulse on 17th February 2020, published by Jonty Gordon from Amgen Law.  

    Featured image credit: Netflix.