Agree with James on this one. You can’t forcefully remove person’s body part or make him perform something. In that sense human body is unalienable, even though I would question that also if it is always the case.
You can claim for damages or something only.
Because to force somebody to honor a contract is basically slavery. You are basically selling the use of your body to somebody if you are contractually obligated to complete a task under threat of force. You should always have the ability to opt out through payment or other means.
Sure, when what I received in exchange for whatever service I failed to perform is money. But if I agree that, if I fail to do X I will have to give you a pound of flesh, the moment I fail I have transferred my pound of flesh to the other party. If I fail to give it to them, than I stole their pound of flesh, and the situation would be like me stealing a pound of flesh from their body (without causing additional injury?). So, the ‘solution’ is contingent of how the market would come to tackle theft in general. Returning whatever has been stolen seems the certain solution, so this would not end well.
As for services, I agree that if i fail to provide, than the situation is no different from me failing to perform teh service if paid to. The whol eissue would be in determining the correct price when no monetary price has been agreed upon. But the task is not to tough.
But if monetary price wasn’t agreed upon, don’t that mean that contract is invalid and unenforceable?
Certainly not. It just means that we agreed to barter, not to purchase/sell to/from one-another. What make money transaction enforceable or barter unenforceable?
It’s not that money is enforceable and payment in non-liquid moveables isn’t…
The point is that transfer in title of money happens when someone is paid. It would be absurd to talk about money having changed hands from Chester to Beatrice if it’s still sitting in Chester’s cash register, even if he had promised to pay it to Beatrice in the near future. If that money is stolen from the cash register before he pays her, the thief is stealing Chester’s money - not Beatrice. Chester is still liable to Beatrice in terms of his personal promise.
Chester must make it such that Beatrice can take delivery of the money, in legal terms. He must ‘pay’ her. That’s the moment at which title transfer takes place. If the thief steals it after this moment, he is liable to Beatrice, and Chester is no longer liable to her.
With a non-liquid moveable, transfer in title can similarly only take place once the old owner performs in every way necessary to make the thing available for delivery to the new owner. If it’s absurb to talk about money in X’s cash register/wallet/savings account as being held in title by Y, then I feel that it is absurd to talk of X’s heart/liver being held in title by Y while it is still in the body of X.
Otherwise you get this…
Imagine that X promises to allow Y to cut off X’s left pinky finger if X defaults on the primary agreement. X defaults on the primary agreement, and is now liable to allow Y to cut off his left pinky finger. Y justifies the force necessary to achieve this by arguing that title in said finger was transferred to him the moment X defaulted on the primary agreement, and that the finger is therefore his.
What if a third party - Z - cuts off X’s finger after X defaults on the primary agreement, but before Y is able to enforce the secondary one? I suppose one might argue that this achieves the implicitly punitive purpose of Y, but I feel that this is besides the point, as the purpose of private justice is fundamentally compensatory and not punitive or pedagogical. What if Z was doing this in terms of a similar agreement he’d had with X? Don’t you then have a situation in which X can enter into an infinite number of contracts in terms of which he offers the same left pinky finger as security?
In any case, is Z now liable to provide Y with X’s severed finger? What if he loses the finger, or destroys it? Is he then liable to provide one of his own fingers?
All of this absurdity is unnecessary if you allow that transfer of title cannot simply be a matter of personal agreement contemplating conditional perfomative outcomes. There must be a real, single moment at which title transfer takes place - it can’t be an uncertain contingency.
First of all, it is of no consequence to ownership on who’s actual possession some item is right now. I sell a Picasso to you, but the moment we sign the contract it is still in my house. Is such a contract unenforceable? Am I allowed to ‘default’ form it after signing? If I do, can you take money from me, or the paining? The answer seem to be pretty clear: no, you can’t default post facto! The painting is now mine and I can take it by force. No matter who is actually holding the stuff, property can be transferred.
Now contracts such as “if you stop paying me I’ll have you pinky” are not enforceable, but not because they are gross, strange, non-monetary or something. Simply because in stopping payment I repudiate the contract, and all liabilities I have not incurred up to the moment before repudiation. And since the moment before I repudiate the contract I have incurred no pinky liability, I do not have to cut anything.
But what if the contract somehow continues beyond default (can’t hink of an example right now)? In that case, I default ‘within’ the agreement, not by repudiating it, so I do incur the pinky liability under contract. Than, it can be forcibly taken from me.
The important real world conclusion I see is with mortgages: I formally repudiate the loan, and whatever the contract says, I do not have to give my house to anyone. Of course, I stole from the bank whatever part of the principal I have not yet paid, but there is nothing that ties the house to that particular liability, contract notwithstanding. Now, if the bank wants to get around this, It’ll ask for the house to be transferred to itself as property right at the begging, and then agree to give it to you on the completion of the repayment. But simply by stating that I pledge something is case of default, I don’t have an enforceable claim o n the pledge.
Is this a more satisfactory conclusion?
If you let people just repudiate the contract whenever they wish without consequences. How can I rely that a person whom I signed the contract with will do his part if he can just repudiate it without even providing compensation? Even today compensation is being provided if one of the parties decides to repudiate the contract. Without mandating compensation (which is usually better if specified in the contract itself), you remove a very significant part of any contract and you severely limit voluntarist society.
I remember in my micro text a few years ago when the author remarked, “if we must the punishment high enough to deter some action, we might well find that we need institute the death penalty for parking contraventions.” Would that be all right? So, the punishment-as-deterrence theory does not work in the short run.
Anyway, we’re just killing time here. The real test of such theories will be the market.
‘Delivery’ in legal terms doesn’t necessarily mean a physical transmission of possession, though this is one very common mechanism.
‘Delivery’ essentially means making it possible for the transferee to take ownership of the thing in question, whether this be by literally handing it into his care, physically taking it somewhere he asks you to, allowing him to come onto your property to collect it himself, or handing him the title deed if the article concerned is immovable.
I do not think it is consistent to accept that one is entitled to use force to claim the painting in your example, and not a pound of flesh in those such instances. I think one is entitled to use necessary force to recover the money lost. One can’t have a title deed claim to both the money lost and the painting at the same time. That’s not to say that one cannot continue to hope that the defaulting party will provide the painting, and that one might forgive his debt when he does, but that’s an issue aside - what was wrongfully taken was the money paid for the painting, not the promise of a painting that was never delivered.
A bond or mortage is secured against the title deed of immovable property. Title deeds themselves are peculiar to the nature of immovable property, which I’m sure you know is a lot more prickly than movable property generally. You don’t get mortages or bonds with things that move around… They are purchased on credit whereby title doesn’t transfer until the last payment is made.
Well, I disagree with that. To me, once you transfer property and then somehow fail to provide, you’re no better than a thief, and should be treated as such. If I wanted money instead of the painting I would not have agreed to the sale. Anyway, this is idle talk we’re indulging in here. The market and only the market can show the most effective theory.
I don’t disagree. A thief should be compelled to return what they stole.
If you pinch $100 out of someone’s handbag, you’ve stolen $100 and should return it plus interest.
If you offer to sell someone a handbag for $100, and then run away with the handbag and the money, have you stolen $100, or have you stolen a handbag? If they catch you and it turns out the handbag you had was a cheap plastic fake, should you be forced to work to pay for the genuine article your victim thought they were buying? Isn’t this a bit ridiculous?
Is a promise to transfer property the same as transferring property? I don’t think it can be.
You may have wanted the painting, but clearly the other party doesn’t want to give it to you. Even if they lied to you, and even if they are a thief, what they stole was your money… Not the painting.