In Misesian liberal theory: If a person contracts to offer their severed arm in exchange for a china cup, and then absconds and accidently smashes the cup; is a court entitled to sever the person’s arm to provide appropriate compensation to the china cup seller? In other words is all property equal, even the body of the owner?
Can a court compel service if it was signed into a broken contract? If not, how can any price on a service be set? Can a debt of service be inherited?
I am a little shaky on the differences between slavery, servitude and liberty in legal terms, and am seeking enlightenment.
The legal term is “specific performance”. Legally, I believe (in the US at least) that it is decided on a case-by case basis, though IANAL. Morally, it’s a difficult thing to establish a firm rule for. If the person expecting the arm took no action, incurred no expenses in anticipation of the arm, just dropping the whole thing might be the only real choice. But if he did take action - say removing his arm in anticipation of getting a better one installed, then specific perfomance may be required.
A good contract will have an out-clause, a penalty either party would pay if they breach the contract. There’s really two issues. First is the value of the trade itself, which, if never consummated, carries no cost. The second is the value of having the agreement in place. In a more real-world situation, two businesses may contract for one to buy the other. One or both of them may then begin to do things like securing financing, selling assets, reorganizing their operations or staff, etc. In this case, the agreement to trade was in a sense consummated even if the trade itself was not. A court will look at that in deciding on a demand for specific performance, but in cases like that it is even more important to have an explicit penalty for breach. One of the goals of devising a good contract is to leave the courts as little room for interpretation as possible should there ever be a conflict.
As to slavery, a contract in which you sign away your rights is invalid on its face. By that I mean your right, say, to own property, as opposed to your right to a specific piece of property. Rights, in that larger sense of the word, are inalienable - it’s not possible to sever them from a person, even if the law claimed to allow it. Rights and the responsibility for things like honoring your agreements are two sides of the same coin. If you could sign away your rights, you’d also be signing away your responsibility to meet the contract. You’d be agreeing to no longer be a moral agent. “Servitude” is a different thing, and can be validly contracted so long as there is a time-limit and/or a way to buy out of it, and it provides for the retention of inalienable rights. It’s can be a valid tool for restitution, while slavery, prison, or death are not.
The last point is not correct even if something is bought, but not comsumed it still bears on the cost for the involved parties. And that is the cost for engaging into trade (labor or spare time) plus perhaps an opportunity cost that may arise. You are however right that a good contract should be able to deal with that kind of cancelation or exiting issues properly.
I was mainly trying to say that there are two different considerations that need to be evaluated separately. Costs associated with anticipation or preparation for a trade are not the same as the costs of the trade itself. The distinction is more important in cases where the payment is made either before or after the good is actually taken possession of, such as a deposit or a 30-day billing cycle.
Good catch on the opportunity costs, I missed addressing that, and it would merit some consideration in almost all cases.
Ok. So suppose the out-clause included arm surgery on the impoverished cup seeker, and that the china cup seller did not need the arm but knew a man who did. A man’s right over his own body is a property right and he has an unlimited liability for committing his own property to voluntary contracts. So in principle, a court could coerce the shearing of the man’s arm even if he had changed his mind. If there is no difference between self-ownership and other forms of property ownership.
But then if that is the case, could a man not stake critical body parts and consequently his own life on a contract. In which case what becomes of the inalienable right to life?
The out clause, the penalty for breach, is an alternative to specific performance. If it requires SP, it defeats its purpose, and should not be considered a valid part of the contract.
A vicious dog attack took the man’s arm so it was no longer available to trade for the tea cup?
And, coincidently, the man was holding the tea cup with the hand on the said arm at the time of the attack?
The man can neither return the tea cup or have the arm forcefully removed by agents of the court. Now the out-clause can not be possibly enforced nor the original contract. Man walks away with no obligation to the previous owner of the tea cup since enforcement is nigh impossible through no fault of his own.
Ok, I understand what an out-clause is now. But could amputation be contracted as an out-clause to some other specific performance?
My real question is whether a free person can stake their own body on a contract, with the same civil obligations as other property forms; and if so how do they avoid enslaving themselves?