How can we have explicit contracting when words themselves are implicitly defined? Words are the bases for stipulating transfers of ownership yet the can only be defined by words which can only be defined by words and so forth. Even if there were one supreme dictionary that served as the final arbitrator for defining specific words, it would be limited to defining words with other words and so forth ad infinitum. Therefore, regardless of the desire to be explicit as possible in the transfer of ownership there must, at some level, be a form of arbitrariness subject to loose interpretation. The question then becomes, how much? How much implicit contracting should be allowed within the transfer process before the contract is void of authority. For example, is a handshake authority enough to transfer ownership? The answer is possibly. Yet, we may even be less explicit with transferring ownership if there is no dispute over the exchange. For example, if a child puts a stick down and another child picks it up we may safely assume that ownership as been abandoned and claimed. Yet, if the first child rushes back to claim the stick only to find it within the hands of another child there is a dispute. If these children were mine i would probably ask how long the stick was relinquished of ownership before it was reclaimed. Yet, even here, I would be using my own subjective criteria to gauge the dispute. If I were to judge that the stick was only set down long enough for the child to scratch their nose than the ownership has not been abandoned, yet, if the child went on and began playing with another toy than i will assume the original ownership was abandoned. In the case that we are dealing with children i may even make the ruling that no one get to play with that particular stick. The point of this process is not whether the correct decision was objectively made, since we are in the realm of subjectivity, but whether the ruling was thought to be fair enough from the point of reference of the community. This is the only way the arbitrator will stay in business long-term (In the case of the parent, the arbitrator is nearly supreme since the children depend on his or her services)
Woud you consider this an elaborate duh?
It seems to me (if I’m reading you correctly), that you talked yourself right into the answer. There is no airtight, foolproof way to avoid some subjectivity creeping in when evaluating what documents mean. We can limit this problem with definitional sections, as is already done in contracts, but cannot eliminate it entirely. Ultimately, it rests upon arbitration to settle these disputes over language (that’s what arbitration is for) and, as you note, if an arbitrator develops a reputation for playing too loose and fast with language, he’s likely to go out of business.
I agree with Lewis S. and would like to add that if the case were about a legitmate claim to vagueness in the language in the contract that the arbitrator is unable to resolve satisfactorily, I would guess at two possible solutions:
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An additional third-party arbitrator could become involved for clarification; or,
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The contract could be subject to moderate renegotiation.
These two outcomes would, of course, have to be agreed upon by the parties involved in the contract.
A very interesting question. Speaking in abstracts, one must consent to a contract, unquestionably. The problem comes in deciding what is consent, because consent needs some form of manifestation. For instance, let’s say I download a program on my computer and click that I agree with the terms and conditions without reading them. A man shows up on my doorstep the next day demanding the use of my car, as per the terms and conditions I clicked I agreed with.
Clicking that you agree to the terms and conditions is a physical act that appears to give consent, but I would argue that no actual consent has been given.
Is a handshake, then, actually a physical manifestation of consent? I would say yes, but some might disagree, thus demonstrating once again the necessity of anarchy and customer-driven determination of these things. Let the market decide which physical acts constitute the manifestation of consent for which particular contracts.