This is a theory supported by many libertarians, including Murray Rothbard and Stephen Kinsella, but not others like Walter Block. This theory says that contracts can only be enforceable when they include title transfer. So if a singer promised a theater owner to perform on a given day, his mere promise cannot be enforceable unless the singer also specifies that he transferrs a specific amount of money to the theater owner in case he doesn’t appear. Only in the latter case there is a title transfer and thus the contract can be enforced.
I am inclined to disagree with this theory. Why can only title transfer contracts be enforceable? Why not enforce any kind of contract? For example if I sign a contract with you that I promise to lick your shoes for the next week, 10 minutes each day, and then fail to do so, I think you have the right to use force to make me do it. Why not?
If we don’t allow such contracts to be enforced, we remove an important deterrence tool. For example how can I make a poor singer perform in my theater? There is no title he can transfer in case he doesn’t appear, so according to the title transfer theory of contracts I cannot enforce the contract with him. What if I leave my kid with a babysitter and the babysitter doesn’t perform his/her duties and the kid dies. Mere compensation will not be enough, I would want the contract to include a clause that specifies the physical punishment the babysitter will get if she doesn’t do her work.
So I guess my question to you is, why to remove such an important tool from the contract theory?
Because you can only use force in response to aggression, and breach of a contract which did not entail transfer of title does not involve aggression.
You think there needs to be some sort of coercive element to encourage starving artists to try and get gigs? Maybe you should offer to pay them more if you think they won’t bother showing up.
I don’t know how enforcing specific performance is going to help you when your kid is dead, but in any case try to remember that babysitters are not the most highly paid professionals in the world. You obviously aren’t going to pay them if your kid dies in their care. If you think they should have had a greater incentive than the $10, or whatever, you were going to pay them for the evening, then perhaps you should have paid them more, or alternatively relied on someone who shares unquantifiable economic ties with you - i.e. a friend or family member that you ‘trust’. Of course, if the babysitter did wrongfully cause harm to the child, that’s an action in tort distinct from the contract.
What, specific performance? It’s regarded with suspicion and contempt in most courts. You normally can’t force someone to do what they promised in terms of contract, unless it involves a transfer of property.
There’s really no reason to punish people who don’t keep their word, in general… They will get a very bad reputation.
If a court does make an order for specific performance that doesn’t concern a transfer of title, it will always make an alternative order for damages. The statist court presumes that it can make this order and hold the parties to it, while a private law system would require the alternative damages claim to be based on a term in the contract itself.
Aggression is a harm to property against the will of the person, yet according to the contract the person agreed to such harm in case he fails to perform his duty. In that case, this is not aggression, it is a legitimate use of force.
There are many examples in which this is necessary. For example a court may sign a contract with the plaintiff that in case he lies, he will be subject to the same punishment as the defendent would have been subjected to if he were found guilty. Monetary compensation is not enough, if the act of lying can cause a man his life (in case of accusation of murder), the accusor will have to be severely punished for his lie. Title transfer theory of contract cannot warrant that.
Contracts are pieces of paper, and have no inherent magical properties. Why should a promise made verbally be less enforceable than one put it writing? This whole fascination with contracts seems to be a cultural thing we drag since the days when writing was seen as holy.
You haven’t studied Roman law by any chance? That’s essentially the case. The words, written or otherwise, were originally sacred, in pagan Rome.
If they did hypothetically consent to force, why can’t they withdraw it? You can withdraw consent in most cases where it would otherwise allow someone to claim estoppel when they use ‘force’ against you.
I think the liar is liable for damages to the person who was wrongly sanctioned, if it comes to that. I don’t see why there necessarily needs to be such a dramatic contract of dubious 3rd-party enforceability with the actual arbitrator.
First of all there is nothing magical about contract. Verbal agreement can be just as enforceable. The problem with verbal agreement is that it is harder to prove that it actually occured, while a signed piece of paper is a serious evidence.
Now let’s return to the babysitter example. If the babysitter was negligent in her job and as a result my kid died I’d like her to visit jail. But how can you justify using force against him/her? According to you this would be aggression, after all she did not use force against anyone before. According to “my” theory of contract use of force against her could be documented in a contract and thus shown that she consented to it.
Indeed, she only has to return whatever fee you paid her. There are a lot of things that I would not like to happen, but this does not mean I have the right to forcibly keep them from happening.
After, all, when your current will and you past will conflict, why is it that you past will should prevail, as is implied in ‘your’ theory? If anything, it’s your present will, one formed by wider information, that should prevail. If we stuck to whatever mistakes we did in the past, we’d most certainly be in the Neolithic still.
As I said before this is very limiting. Suppose a medicine producing factory hires a man for a super sensitive job. If he doesn’t do his job well people might die. It is very useful to produce a contract in which criminal negligence at work will be punished physically. Without such contract the worker will just pay his insurance money to the potential victim. This is simply not enough in some cases.
With title transfer theory of contract, why the past should prevail? Why can’t you withdraw your consent later? That’s exactly the same thing. In my theory, you give your body conditionally to another person, in title transfer theory you can only give conditionally your property which is not your body. The concept is the same though.
Well, as for any such discussion, we’re merely guessing here. Which theory will hold on in practice can only be seen…well, in practice.
Now, contractualists put a man’s past will above his current will in a very real sense: yesterday I signed a contract with you, whence I agreed to work for you for the next 20 years. That was my preference yesterday. Today, I change my mind. Here we have a conflict than: which should prevail, my past will or my preset will? Title transfer says: of course one’s present will is to be prominent. Contractualists say: of course you past will should prevail! Which of these theories in truly limiting? Title transfer, which may seem inappropriate in a few instances? Or contractualism, where all new information beyond a contract’s stipulation is equated to zero?
You are looking at this wrong. Both theories prefer the past over the present. There is no difference whatsoever. Both are in fact title transfer theories, only I also include the body itself as property, and you don’t. According to me it is okay to say “I give you the permission to cut my arm in case I fail to keep your child safe”. You will say “I give you permission to have my 100,000$ in case I fail to keep your child safe”. In both cases there is a title transfer, in the first it is my arm that is being transferred, and in the second my money.
Hold on, I am under the impression that we’re discussing different points.
Contarctualism puts past over the present. If we agree that you’ll have a pound of flesh if I fail to pay you, and than I change my mind before I fail to pay you, you’re still insisting that what I though yesterday (agreeing) stands over what I think now. This is contractualism: once the promise has been made, its enforceable.
Now what happens if I fail to pay and than I change my mind if up for debate, even for title transferers. You see, the whole game is in being able to change the contract before any obligations have been incurred. After they are incurred, title transfer does not change them. Whether, after I fail to pay, you can take my pound of flesh is not a debate of contractualism vs. title transfer, for both theories agree that a liability has been incurred. The debate is in terms of retribution theory, whether you’d be allowed to default on that liability for a sum of money. So, the debate should be reframed.
Okay, I used the wrong definitions. Title transfer actually makes sense, only that I believe title can include the body as well. For example I can sign an agreement with you, that you will babysit my child and will receive 100$ for it. If my child will be seriously harmed because of your failure to do the job (according to arbitrator Johnson & Johnson), you will owe me one of your fingers.
Instead of “one of your fingers” I can specify a title to anything, including the entire body, or specific functions of the body during specific time frame. For example I can specify that you will have to dance naked during 3 hours in the village square for failure to perform the job.
I think for many very vulnerable jobs you have to use body title transfer, since simple monetary payment is not always a sufficient deterrence. Kinsella tries to explain why body can’t be considered property in contractual agreements, but I think that’s a very feeble attempt to explain it (read here: https://mises.org/journals/jls/17_2/17_2_2.pdf)
If transfer of title had occurred, you would be able to sell or otherwise alienate the right you have against that person’s body…
Everyone knows that you can sell debt obligations such as bonds or securities, for example.
How on Earth could you alienate the title you allege you have acquired in the person who has promised to do these things for you? Surely their promise to give you a pound of flesh, as it were, or provide a specific service is based entirely upon the unique nature of the service they had promised to provide you with in the first instance.
If you can’t identify the thing that is to be sold, if it can’t be alienated to successors in title as a distinct right, then no transfer of title can have take place. Aggression against a lawfully held title cannot be justified based solely on a personal promise.
The fact that these jobs don’t pay much IS the deterrent. If you aren’t reliable, you’ll never get a job that pays better. A struggling artist is desperate to get gigs. A babysitter is often a young person who wants to get a much better full-time job in the near future, contingent on their good reputation. Their reputations are on the line, and they value their reputations greatly.
Sure you can sell the rights to own specific parts of the body for specific purpose for a specific time. For example I can sell you a bond that gives you the right to use my body for the purpose of cleaning your house once a week.
I can also tell you this. When I take a medicine I’d like to know that the people who made that medicine are criminally liable for any serious damage to me. There are thousands of workers who participated in the creation of the medicine, how do I know they are all competent? Only when I know that someone who is completely negligent in his work will have to sit in jail for several years I will know for sure this bunch of people at least tried to make the medicine safe for my use.
James, I do not gat your gist. Sure, until I fail to deliver, I can walk away from the contract. But after I fail to deliver, the pound of flesh is no longer mine, for I willingly transferred it. Now, surely someone could make money by offering to settle this liability though payment, but if the holder does not agree and insist on his pound of flesh, I really do not see how we’d be justified in negating what is his. And how would this be different from me just selling my liver for a quick buck? Why the former cannot be enforced and the later can?
Actually what is happening here is a one-way conditional exchange. I am granting you title to my money, on the condition that you clean my house. If you fail to clean my house, but you keep my money, you have now stolen from me. If I fail to pay you, but you have cleaned my house, I have now stolen from you. It’s that simple. there is no alienation of anyone’s body in this contract.
I would contend that transfer of title cannot take place until the new owner is in a position, factually, to take control of the thing being sold. If delivery of the thing is conditional upon a performance by the old owner, then transfer of title does not take place until this performance occurs.
In other words, transfer in title of the pound of flesh cannot take place until it is removed from the body of the old owner, as the possibility of taking delivery is contingent upon the old owner making himself available for surgery to remove it.
You cannot shed blood to remove your pound of flesh…
It’s no different to selling your liver for a quick buck. If someone has already paid you for your liver, then you either need to give it to them, or give them the money they paid you plus mora interest. But the punishment for failing to provide either one is not forcible removal of your liver - it isn’t theirs yet. It’s whatever the sanction is for stealing the money they paid you, under the circumstances. If they haven’t paid you yet, eh…
Hm, need to think some more about this. I can see that the treatment of bodily part could be ‘special’ as in property in them is transferred only when the actual removal is made, because by actually keeping the liver in your body you reassert control over it.
But for any other condition aside form body parts, I relay do not se how one can get around the fact that the transfer has already been made when one of the parties failed to provide some service. Now sure, you cannot force someone to dance naked in the village square, and if they refuse to do so, they’ll have to pay some retribution. But in theory, the transaction has been made, and should now be enforced.
