There is an interesting contracts controversy brewing over at the Smithsonian. Yes, it is possible to have an interesting contracts controversy. In this case, the contract was signed in 1948 between the estate of Orville Wright and the Smithsonian. The contract required that, in exchange for the famed Wright flyer, the Smithsonian would never recognize that anyone else was first in flight. That does not sit well with historians who believe that the first in flight was actually German immigrant Gustav Whitehead. Putting aside the historical debate, a contract requiring the museum legally to deny historical claims is plainly unethical. Is it an unenforceable unconscionable contract?
The 1948 contract states:
“Neither the Smithsonian Institution nor its successors, nor any museum or other agency … or its successors shall publish or permit to be displayed a statement or label in connection with or in respect of any aircraft model or design of earlier date than the Wright Aeroplane of 1903, claiming in effect that such aircraft was capable of carrying a man under its own power in controlled flight.”
Accordingly, the Smithsonian has long insisted the first flight occurred on Dec. 17, 1903 with the Wright Brothers on their historic flight at Kitty Hawk, North Carolina. However, a recently uncovered photograph has been cited to support the claim of Whitehead that he went airborne on Aug. 14, 1901. In the end, it does not matter. A contract remains in effect that contradicts the very foundation of museum ethics. Here is the code. This includes: “Curators are responsible for ensuring that all verbal and written interpretation is accurate and accessible, physically and cognitively, whether prepared by themselves or their subordinates.” Curators are also required to “ensure the integrity and objectivity of their scholarship and research projects by compiling reference materials and supporting documentation, keeping abreast of current scholarship.”
The question is whether this contract with the Wright family is enforceable. For example, the family could demand the plane back if the museum denies the required claim. The conflict presents a curator’s version of the “Rule Against Perpetuities” in property. That analogous rule in property states that a will cannot limit “future interests that do not vest within the time permitted and “limit[s] the testator’s power to earmark gifts for remote descendants.” In this case, the museum was given ownership for $1 but the family could claim that the sale was invalidated by the continuing condition. Even if this were true however it would be better to lose the plane than the integrity of the museum. My guess is that the Wright family would be responsible if asked to waive the condition. At least I hope they would be. If not, I would as interested to see the contract put on display in place of the plane.