Is it required to be of sound body and mind to contract?

Miscellaneous General
21

Legal consent is not a rigid idea. Consent is consent. If I consent to something, then I consented. This is just the way it is. What legal consent does is it says that sometimes consent will not be recognized as consent under the law. In the case of a free market on law, what happens is this:

Lorraine and George have sex. Lorraine decides to sue Bill for rape (nonconsensual sex). The dispute is between the two of them. What Lorraine is arguing is that whatever consent she gave ought not be considered consent after the fact. In this particular case, Lorraine had been drugged by someone, and George knows this and gets drugged-Lorraine to consent to sex with him. Well, now that Lorraine is sober, she knows what has been done to her. She knows that someone drugged her and that she and George had sex. She knows that George knew that a crime was committed against her and George took advantage of it. Lorraine knows this. Unless she forgives George (entirely or in part), nothing George says is going to mean squat to her. George can tell her all he wants about how she “consented”, but the fact remains that Lorraine doesn’t really give a shit about that excuse.

I suggest you read What Law Is and A Praxeological Account of Law. The dispute between Lorraine and George is not going to resolve itself just because George says to Lorraine that she “consented”. She knows what George did to her.

In the case of Bill and the doctor, the only case Bill can take against the doctor is that the doctor performed a surgery that Bill didn’t consent to. If Bill wanted to live, then his dispute is about how much the doctor is charging him. But that’s not Bill’s case. He’s just not going to pay. The doctor is the one who is going to sue over the money. Then if Bill says that the doctor took advantage of his delirious state, that he wouldn’t have consented to that price had be been in a normal condition, then nothing the doctor says to Bill is going to change his mind. They will either reach a mutually beneficial agreement or they will remain in open conflict.

Over time, the results of these disputes becomes custom, and parties to the dispute can point to the custom. Bill can say, “Look, this surgery costs $25,000. That’s what I’ll pay him.” Lorraine can say, “Look, the custom is you don’t have sex with a drugged woman. Not only did George have sex with me while I was drugged, the bastard knew that I was drugged. George knew he was breaking the custom.”

“Voluntary slave” contracts would almost certainly be illegal in a free market in law system. Maybe there would be some societies that would allow for it, but the issue of consent would still resort to custom. Regardless, I consider “voluntary slavery” to be illegitimate. The only form of slavery that I even consider to have the possibility of being moral is enslaving previous illegitimate slave owners.

Customs, my friend, customs. There is no way of knowing for sure what people will consider to be legal consent in a free market in law. We can have our own personal opinions, but even then those miss the point. The point is that Lorraine has a dispute with George over what happened. That matter is not going to be settled until they both agree that it is settled. This is true under any system, even a statist system. It just so happens that people usually let the dispute end when the state says it’s over. But this is not always the case. You do see revenge killings or assaults or robberies every so often. Those people didn’t consider the dispute over when the state said so.

22

I’m not sure you replied to my second point about any interaction with her.

23

With all due respect, I don’t know how you got this from what I wrote before. Furthermore, you seem to be contradicting your original scenario with what you say above. In your original scenario, it was the doctors making an offer to Bill and it was George making an offer to Lorraine.

Again, what I wrote before was that the doctors aren’t obligated IMO to treat Bill for his injury at all, let alone for a particular price, while George is obligated IMO to not aggress against Lorraine. In other words, I don’t think the doctors can ever become part of the aggression against Bill, while I do think George can become part of the aggression against Lorraine.

However, I also think that we (you and I) may have different ideas as to what constitutes “being of sound body and mind”. For one thing, I think a person has to be only of sound mind in order to actually consent to something. For another, after thinking about it further, I don’t think either Bill or Lorraine was of unsound mind in their respective situations. Both of them seem to have understood what was going on. I think it would be a different story if they were incapacitated. For example, if Bill lost consciousness after being shot, but the doctors later claimed that he consented to their treatment at the price they gave, then I think the doctors clearly defrauded him. Likewise, if Lorraine passed out after being drugged without her consent, and George performed one or more sex acts with her body, then I think he clearly raped her.

24

That’s a really good way of putting it.

Consent is tricky. I think you are right that just because somebody is drunk or high or whatever, that doesn’t mean that they are necessarily unable to understand what is going on and therefore not give legal consent. I think that if someone knowingly drinks alcohol or does whatever drug, they ought to accept the consequences of their actions while “impaired”. But if someone drugs them, depending upon the manner in which they are “impaired”, I think liability and consent might be a little different.

More importantly, I think, is what the customs and expectations are in a free market in law. While it might be okay to let a drunk continue to buy beer or shots in a bar, people might play it safe on bigger decisions, such as a buying a house. If someone wants to buy or sell a house while drunk, I think the other party might want to play it safe and refuse until the drunk becomes sober. Why risk a massive lawsuit (even if you might win it) if you could just wait until the next day?

In other words, even if George didn’t know Lorraine was drugged, there comes a point when someone just says to himself, “Nevermind, I’ll try the next girl”. If someone is so sleazy that he would go have sex with this Lorraine character in her condition, well, karma’s a bitch. That doesn’t necessarily mean that George deserves what he gets, but part of a libertarian society is reputation. No one wants to live next to a guy who might be a rapist (and only might not be because of a small technicality). So while he may not necessarily be punished by law, his social and economic options will be limited by his shady choices.

25

Wheylous is right. I think I might have figured this one out. Let know what you think:

Neither Bill nor Lorraine is capable of contracting in these scenarios. Any agreement made when they are in this state cannot be said to have been consensual.

But, what if Lorraine and George are actually boyfriend and girlfriend, and when Lorraine becomes sober, she says that the two would have had sex anyway?

What if Bill is a billionaire (this was not intentional at all, I promise), and after the bullet has been removed from his kneecap, he says that $500,000 was a fair price for such a procedure?

When the doctor and George interact with either of these people at all, they are assuming a certain amount of risk. They can only anticipate however they interact with these people would be consented to if Bill and Lorraine were of sound body and mind. This is a constraint placed upon the doctor and George, and could very well be so constraining that neither the doctor nor George interact with Bill or Lorraine at all.

If the doctor miscalculates, and only performs upon Bill because he thinks he can get $500,000 out of Bill later for it, this is a consequence of the risk assumed by the doctor. Bill could even argue that the doctor should not have operated on him at all (because Bill asking him to does not express actual consent, as Bill is not of sound body and mind), and seek restitution from the doctor.

The same goes for Lorraine suing George for their interaction. Like Bill, Lorraine can file a complaint, and then an arbitration agency can determine what George owes Lorraine for his actions.

Consider this:

You walk into living room of your 18-year-old son, or your neighbor, or your best friend. You see that this loved one is about to inject themselves with hard narcotics for the first time. Personally, I’d use force against a loved one about to do something like that; I’d do so anticipating that at some future point, this loved one will look back and see that they were not of sound body and mind, and thus, that I did not commit any acts of aggression. However, if this loved one never comes around to see what I saw, then I am responsible to pay for the damages I brought about – I’d have to pay for their narcotics I took (which, in this case, I would have actually “stolen”), their broken nose, etc. As for the duration of time before the question of whether or not I committed an act of aggression, I don’t know.

This same anticipatory contract can be applied rather well elsewhere. Take, for example, a common complaint of the American medical care system, that if you’re unconscious at the scene of an accident and get taken away in an ambulance, the ambulance can charge you whatever it wants. The complaint – which is valid – is that you cannot agree to pay a price for something if you’re unconscious. If what I’m talking about were applied, the ambulance could not be able to force you to pay for anything after they save you; it assumed the risk that you might not want to be picked up by it or pay the $1000 for the ride. So who would pay the ambulance? Wouldn’t they just always refuse to pay, and then the ambulances would just stop showing up? Yes, if it were no longer profitable, they would stop coming. That’s the point; that’s why people would want to show that they will pay if the ambulance comes. In this case, some people would want to indicate (maybe identify it on a driver’s license, like your status as an organ donor) what you’d be willing to pay for an ambulance ride if you’re unconscious.

Or it could be that the insurance company, along with indicating which arbitration agency will settle disputes before hand, will tell the ambulances, the doctors, etc., what they would pay for their clients in case of emergency.

What do you all think?

26

My definition of “consent” seems to be the same as your definition of “legal consent”. As I see it, if a person doesn’t understand what he’s being asked to agree to at the time he’s being asked, then he can’t consent to it by definition. Does that make sense?

If a person understands what he’s getting into at the time, he doesn’t count as incapacitated in my opinion. Again, I think consent requires understanding. Of course, that doesn’t mean one is obligated to sell a house to a drunk person.

Not only do I agree that part of a libertarian society would be reputation, I think it would be a huge part, and furthermore I think one could have separate reputations with separate (groups of) people. In a libertarian society, a person would by default be free to associate and not associate with whoever he wants to.

27

I strongly disagree. I think in both scenarios, they were capable of consenting. Bill understood what he was getting into, and Lorraine understood what she was getting into. Whether they would’ve made those same decisions under different circumstances is entirely irrelevant IMHO.

Just what is your definition of “sound body and mind”?

28

This is not true on its face. Both have consented. Do not conflate actual consent with what is or ought to be legal consent. You have to show why you think either one cannot give legal consent (I’d like to hear your reasons for why you think Bill cannot have legally consented).

As both Autolykos and I have pointed out, Lorraine can “forgive” George when she becomes sober. Lorraine is the only one who could press charges against George in a libertarian society, certainly if she’s still alive. If she doesn’t consider it a crime, then it wasn’t a crime.

Ditto. If Bill has no dispute with the doctor, then there is no dispute.

You are continuing to ignore customs and norms. First, it is assumed that people want to be saved if they are unconscious. Why? It’s the norm. If they don’t want to be saved when unconscious, people carry around “Do not resuscitate” papers with them (sometimes they wear a bracelet). This is the norm currently, and likely something similar would occur in a decentralized society. If you do not carry your DNR with you, then it is assumed that you want to be revived.

Second, it’s not like the various costs of revival procedures are entirely unknown. Depending upon your condition and what is necessary to save you, the cost can vary greatly. If the average cost of surgery for pulling a bullet out of a knee and stopping bleeding is $25,000, then that is the norm. If some doctor tries to charge you $500,000, then he is greatly breaking from the norm. In a dispute about price, all you have to do is point to the normal cost and the matter is essentially settled. Of course, your insurance agency would probably be dealing with the doctor and not you, but I guess you are assuming that you don’t have insurance for the scenario.

This is not how it works. If you use force against your son in order to stop him from doing drugs, the dispute is between you and your son. If he chooses to press charges, that is his choice. You don’t get to say that because you “know” better, he can’t press charges against you.

29

I think it is evident that the person signing the contract must understand it before actually signing it.

This is why they always tell you to read everything and ask questions before putting a signature down on paper.

Can a dispute arise later, e.g. you didnt understand that contract that which you signed?

Sure, go to court and sort it out.

As for the date rape drug, I think that it is an unjust contract since the person put the drug inside the cup without the girl knowing it (and then this isnt really a contract in the first place is it?).

30

That’s what I was saying. If your son doesn’t press charges, that means you were right, and you did actually know better. It’s his choice, though.

31

I couldn’t imagine you reading too much if you had a bullet in your kneecap, Kevin! :stuck_out_tongue:

32

I see how you are using the term, and I’ll keep it in mind for the future. I use the standard definition “to give permission”, so I reserve the phrase “legal consent” for matters with the law.

I agree with you, but determining if someone unders what he’s getting into can be difficult. I imagine that in a free society, the norm (and therefore the law) would tend toward playing it safe. Let’s look at a scenario without drugs: Suppose you are signing a mortage contract, and it’s in legalese. Suddenly, after paying 2% interest for three years, the bank jumps your rate to 30% interest. Now, you are shocked and file a formal dispute with the bank. Well, if the bank didn’t take the proper measures to make sure you understood what you were signing, then you would be able to point to the normal interest rate of X%. But if you had known what you were getting into, then you can’t claim that you didn’t understand what you were getting into.

So, when one is in a bar, it’s generally understood that the patrons are going to drink and probably get drunk. If you try to claim after the fact that you didn’t understand what you were getting into, that’s almost the same as claiming you didn’t know you had to pay your bill after your meal at a restaurant. It’s common knowledge.

Unfortunately, I think that’s one of the hardest things for people to realize when they talk about anarchy. I think people are so used to the idea of prison that they can’t imagine what life would be like without it. I bet fines would be incredibly common. Just look at how George Lucas had to pay a fine to the Directors Guild because he didn’t put credits in the opening of Star Wars (and then he quit the guild).

Whether or not that was right, I bet guilds would be very common, especially for resolving disputes. If you are looking for a contractor to rebuild your house, you aren’t going to go to just anyone. Unless you already know someone, you need to look up a contractor. Contractors benefit from being in a guild because of reputation. Guilds have an incentive to maintain a good reputation, and so they have an incentive to police their members and help resolve disputes. If your contractor stiffs you or does an unsatisfactory job, then you lodge a complaint with the guild. The contractor has an incentive to resolve the dispute if he wants to remain in the guild. The guild has an incentive to mainatin a good reputation. So, if the guild finds that your complaint has merit, they fine the contractor or have him redo the job or both. If the guild finds your complaint without merit, then I guess nothing would happen to the contractor, and there is always the possibility of you being blacklisted by the guild.

Anyway, I don’t want to derail the thread, so maybe I can make it more relevant. I suppose hospitals have an incentive to charge reasonable prices (I can only imagine how much lower surgeries would cost in a free society). Hospitals aren’t going to charge $500,000 to pull a bullet out of a knee. Who in their right mind would ever go there again? And if someone has a complaint, they can lodge it with the hospital, and if it’s found without merit, maybe that person will be blacklisted from the hospital. Maybe not. Who knows? But I don’t think that this matter necessarily has to be settled through a societal law alone. There is always the possibility of more local laws such as guild laws or whatever.

33

Thats why an incapacitated person will

  1. Not agree

  2. Agree without knowing contract’s bounds

in which case the 2nd choice, the person will

  1. Go to court to make an amendment to the contract

  2. Follow through with the contract.

34

Rewrite. Before reaching my conclusion, I rewrote the scenario a bit to be “Or, it could be that Bill offered the doctor Bill’s own servitude [in exchange for the medical procedure].” Someone correctly noted this would be the “voluntary slavery” libertarians would not enforce. What I was trying to get across (and failed to) was that Bill would have to spend the rest of his life paying off that debt. It’s a pretty serious debt, and he “agreed” to it while he had a bullet in his knee. That’s where I was coming from. My mistake.

BTW, I wonder if my “solution” satisfies The Wheylous. It doesn’t seem to have gone over too well with the others on this thread :stuck_out_tongue: (but it’s alright).

35

A contract doesn’t take place in a void. It is built off of existing expectations, customs, etc in the relevant social environment of the actors who signed it. The requirments are in the environment.

There may be some defintional / tautological hint that whoever signs a contract is somone who has to be of sound mind, etc as it is just the nature of a contract to have that be the case within the realm of the social expectations at large, but overall I think even this is unimportant when compared to my first sentence.

36

That helps. Thanks. Do you know of any articles published specifically on being of sound mind when signing a contract?

37

To specify: I don’t believe being of unsound mind because, for example, you are in poverty is grounds for invalidating a contract. My scenarios specifically dealt with two people of unsound body/mind as a result of acts of aggression. It would be a shame not to differentiate the two:

  1. “A person in a third-world country has a choice between A) working in a sweatshop and B) (starving to) death. Therefore that person is being coerced; they are not of sound mind to decide where to work.”

This person may well be of unsound body and mind, but it’s a result of their environment, which force cannot be used to alter without violating the NAP (eg. a law against poverty or unemployment would violate it).

  1. A person being mugged has a choice between A) giving up his wallet and B) death. The difference is, of course, there is an aggressor in this one (who can be forcibly removed from the equation without violating the NAP), so the transfer of the wallet is understood as coercive.

BTW, this is my answer to the metaphysical question, “Are our actions really voluntary, or does our environment force us to do what we do?” I don’t know the answer to that in all cases, so I bring up the aforementioned point about aggression and the NAP.

Is this a sound argument in your opinion? I’m pretty new to the philosophic aspects of libertarianism.

38

I have no idea what you mean by “not of sound mind”. I think Autolykos also asked you to define it, and I don’t see an answer.

39

Well, I assume you have some idea what I mean by that by the scenarios I provided. I mean someone who has been roofied is not of sound body and mind. There is an impairment in this person’s capacity to understand what they’re getting into (as was mentioned in the thread). In the two scenarios, Bill and Lorraine’s impairments are the result of acts of aggression against them (Bill was shot and Lorraine was drugged).

Autolykos wrote:

This is where the disagreement lies. The purpose of a date-rape drug is to make it so the victim cannot understand what [he or] she is getting into. If Lorraine says the next day she was raped, then that is her argument – that she could not understand what she was getting into because someone slipped her a date-rape drug. Bill will make the same argument if he tries to sue the doctor.

The question is whether a libertarian judge should conclude that George/the doctor or Bill/Lorraine is in the right. In other words, whether the contract should be enforced, whether George had the right to have sex with Lorraine, or if the doctor had the right to take Bill’s $500,000. If either contract should be found to be invalid, then for what purpose other than Bill or Lorraine not being of sound body and mind? And if one of the two victims are not of sound body and mind, how isn’t the other?

Anyway, at least we can see where we disagree (although, please let me know if I’m wrong about that)

40

We are accepting arguendo that Bill and Lorraine could not understand the situation. After all, being shot in the knee doesn’t make one unable to consent, it’s the bleeding out to the point where Bill’s mind is affected that causes him to be unable to consent, especially if he passes out. It’s the same with Lorraine, date rape drugs have to be taken in a certain dosage for the effects you are talking about to emerge.

There are two major beliefs about the role of judges in a libertarian society. One is that judges should play the role of mediator between the parties of a dispute. The other is that the parties of a dispute agree beforehand to abide by the ruling of a judge. There are other views, but these two seem to be the most common among ancaps.

I favor the first, but I don’t necessarily consider the second to be wrong or without a place in a libertarian society. The main reason I favor the role of mediator is that the judge is meant to help resolve the dispute. It also helps cut down the time it takes to find a “neutral” judge that both parties can agree to. After all, it’s easier to shop for a judge when you know he isn’t going to rule against you.

Anyway, you are continuing to miss the point regarding Bill and the doctor. You keep making it about the amount of money the doctor is asking for, but you are not arguing a principal when you do this. Did you watch that Milton Friedman video I linked to?

You also didn’t respond to this that I wrote: