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RachelGholstonFirstPaper 4 - 24 Apr 2012 - Main.RachelGholston
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Efficient Breach or Slavery
-- By RachelGholston - 15 Feb 2012 | |
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< | Why do we have a legal concept that allows people to break their word at a certain cost? Because forcing someone to keep her word, would amount to slavery. Slavery in our society is reserved to those who are tried and convicted. Freedom can in one sense be characterized by the ability to breach contracts. | >
> | Why do we have a legal concept that allows people to break their word at a certain cost? Because forcing someone to keep her word, would amount to slavery. Slavery in our law is reserved to those who are tried and convicted. Freedom can in one sense be characterized by the ability to breach contracts. | | | Efficient Breach | |
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< | The theory of efficient breach as I understand it is the theory that society is better off when allowing someone to breach a contract for a better opportunity. Society's goal is for the positive externalities of the new opportunity to outweigh the negative externalities of the breach. Our devotion to capitalism and the monetary system often leads to the conclusion that the breach is efficient if the net gain for the breach is greater than the loss to the non-breaching party. The loss to the non-breaching party is measured by money rather than the intrinsic, idiosyncratic value of the subject of the contract. If we take the notion that “The fortune is the measure of intelligence,” then efficient breach is an intelligent endeavor. | >
> | The theory of efficient breach, as I understand it, is the theory that society is better off when allowing someone to breach a contract for a better opportunity. Society's goal is for the positive externalities of the new opportunity to outweigh the negative externalities of the breach. Our devotion to capitalism and the monetary system often leads to the conclusion that the breach is efficient if the net gain for the breach is greater than the loss to the non-breaching party. The loss to the non-breaching party is measured by money rather than the intrinsic, idiosyncratic value of the subject of the contract. If we take the notion that “The fortune is the measure of intelligence,” then efficient breach is an intelligent endeavor. | | | Slavery | |
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< | The Constitution ended the chattel slavery of African Americans with a brief note: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation.” One would argue that enforcing a contract is not slavery, because the person voluntarily entered into the agreement. Indentured servants often voluntarily entered into their servitude, but the threat of slavery necessitated the ban on such practices. Today’s at-will-employment is based on the idea of instantaneous liberty. Despite the absence of an absolute present, only our present liberty has legal recourse. Slavery is so abhorrent that one cannot enslave his future self. The creation of slaves is the sole right of the government of the United States through its legislative and judiciary branches. Through the magical process that Jerome Frank describes for the way the law operates on men, the citizen is morphed into a slave, duly convicted of course. | >
> | The Constitution ended the chattel slavery of African Americans with a brief note: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation.” One would argue that enforcing a contract is not slavery, because the person voluntarily entered into the agreement. Indentured servants often voluntarily entered into their servitude, but the threat of slavery necessitated the ban on such practices. Today’s at-will-employment is based on the idea of instantaneous liberty. Only our instantaneous liberty has legal recourse. Slavery is so unnatural that one cannot enslave his future self. The creation of slaves through the law is a right of the government of the United States through its legislative and judiciary branches. Through the magical process that Jerome Frank describes for the way the law operates on men, the citizen is morphed into a slave, duly convicted. | | | A weak form of Social Control
Contract law is not a form of social control at all. It creates checks and balances, which serve to reinforce our value system, expressed commonly by monetary value. Efficient breach is the best support for the claim I just made. In contract law, morality turns on fairness. Fairness is a matter of compensation. In this train of thought, morality turns on compensation. Reputation and continuous relationships keep contracts in tact better than our compensation system. “Social control” stems from social interactions. Legal control stems from legal interactions, like trials. The only way the legal system can force behavior is through enslavement. Who does the system of juridical slavery typically target? Those who cannot afford to live morally…meaning fairly…meaning with the ability to compensate when they breach contracts. |
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