tag:blogger.com,1999:blog-3891434218564545511.post5841281538066127727..comments2024-03-28T19:56:42.305-05:00Comments on Alexander Pruss's Blog: Immoral contractsAlexander R Prusshttp://www.blogger.com/profile/05989277655934827117noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-3891434218564545511.post-68637947225743227532009-12-08T04:51:35.498-06:002009-12-08T04:51:35.498-06:00Alex you mean a partly performed contract, which i...Alex you mean a partly performed contract, which is where one party has completed or attempted to complete their part of the bargain in good faith. The law, at least in my neck of the woods, generally requires the parties to be restored to their pre-contract positions if the contract is deemed to not be a contract in this situation. <br /><br />Where someone induced another into a contract by making a fraudulent or dishonest promise they may also be at risk of punitive damages in addition to their obligation to restore the other party.<br /><br />(Not sure that any of this helps you rather interesting philosophical idea.)Madeleinehttps://www.blogger.com/profile/00377823497040412237noreply@blogger.comtag:blogger.com,1999:blog-3891434218564545511.post-16566966150706022642009-12-06T08:22:53.970-06:002009-12-06T08:22:53.970-06:00I think it would be simpler and preferable to say ...I think it would be simpler and preferable to say that the immoral contract is invalid and has no binding force. Contracting, like all genuine human institutions, is aimed at the good.Alexander R Prusshttps://www.blogger.com/profile/05989277655934827117noreply@blogger.comtag:blogger.com,1999:blog-3891434218564545511.post-1936129250646241922009-12-06T01:43:45.193-06:002009-12-06T01:43:45.193-06:00What if you challenged 1. Alan Donagan refers to ...What if you challenged 1. Alan Donagan refers to situations he dubs <i>perplexity secundum quid</i> which he attributes to Aquinas. Perplexity secundum quid refers to a situation where by breaking one moral prohibition you entangle yourself in a situation, in which, whatever you do, you must break another. Donagan suggests in these situations there exist what he calls “contrary to do duty prescriptions” to do the least grave wrong. If this is correct then in these situations the you would have overriding reasons to do what is wrong. <br /><br />Now couldn’t a case where one enters into an immoral contract plausibly be a case of perplexity secundum quid: you contract to do something immoral and now are in a situation where either you perform the immoral action, or you do not follow through on your contract and as a result wrong someone in another way. <br /><br />If this possibility were actualized one could argue that the contractor has reason to do the lesser of the immoral actions and perhaps this reason could justify enforcement of an immoral contract in certain circumstances.Matthttps://www.blogger.com/profile/04354340839915905028noreply@blogger.comtag:blogger.com,1999:blog-3891434218564545511.post-38150060471706918042009-12-05T22:35:37.122-06:002009-12-05T22:35:37.122-06:00Thanks for these comments. You know more about th...Thanks for these comments. You know more about this than I do.<br /><br />If you're right, that strengthens my argument: neither enforcement nor recognition is permitted.<br /><br />I used "enforcement" in a non-technical sense. I was thinking of a case like this. Suppose I come up to you and offer to tell you how to trisect an angle with ruler and compass for a fee. You don't know that this is logically impossible, so you pay me. Now maybe the contract is null and void, since it is logically impossible of performance. But morally speaking it is clear that I owe you your money back. By "enforcement" I just meant this kind of compensation.<br /><br />Another example: Suppose I promise to write a term paper for someone else for $50, and they give me $50. I take the money and don't write the paper. While the contract is immoral (and in some jurisdictions illegal, I think), nonetheless if I do not perform, I have a moral duty to give you back your $50. The law in a particular jurisdiction might not require me to give it back, but morally speaking it does not seem wrong for the state to require me to give it back.<br /><br />"Compensation" would have been a better term than "enforcement". So then we can say that (a) immoral contracts may not be recognized or enforced, but (b) sometimes compensation in the case of an immoral contract <em>might</em> be morally appropriate. I think this only terminologically changes what I said.Alexander R Prusshttps://www.blogger.com/profile/05989277655934827117noreply@blogger.comtag:blogger.com,1999:blog-3891434218564545511.post-42887123213085371972009-12-05T14:31:01.055-06:002009-12-05T14:31:01.055-06:00Not being a trained philosopher but merely someone...Not being a trained philosopher but merely someone trained in (commonwealth) law with an interest in legal philosophy, I am wondering how the state can enforce a contract it does not recognise? (or are we using the terms differently?)<br /><br />At law, at least in the commonwealth jurisdictions, the process for enforcement, be it a solution from the law, such as compensation, or an equitable remedy, such as performance, first requires the recognition of a contract before the consideration of breaches and remedy can arise. The contract's recognition is prior to enforcement.<br /><br />If the court was asked to decide on the contract with the graphic designer to draw a square circle, it would probably find that it fell over on the grounds of consideration (consideration being the things of value moving between the parties). One party is offering money, the other is offering the square-circle. The square-circle is arguably not a thing of value as it is an impossibility and things of value must be real (in contract law at least). It could also raise issues around other key components of a contract such as capacity; if one party <i>really</i> believed it could deliver a square circle then issues of soundness of mind might arise. On the other hand, intention to create legal relations would arise if the party did know that he or she could not deliver the square circle then from the outset he or she never intended to perform) as well. <br /><br />In the absence of the key elements of a contract being present you are quite right to conclude that the contract would be deemed null and void. However failure of this sort means that there never <i>was</i> a contract. Therefore talk of enforcing it in spite of this is something I find strange.<br /><br />BTW not sure if American civil jurisprudence is the same as commonwealth on this score but performance is typically enforced when it would be inequitable to simply award monetary compensation. Consider a contract with a builder to build a house, if the contract falls apart, you can find another builder so financial compensation is adequate but if the contract was for me to sell you the Mona Lisa, then you cannot just go off and buy it from someone else because there is only one; performance is necessary.Madeleinehttps://www.blogger.com/profile/00377823497040412237noreply@blogger.comtag:blogger.com,1999:blog-3891434218564545511.post-11757367536505494582009-12-04T15:06:33.394-06:002009-12-04T15:06:33.394-06:00Interesting - if this weren't a Friday I'd...Interesting - if this weren't a Friday I'd be reading this in much more detail. I feel like something is amiss, but it'd be stupid of me to comment with my brain halfway out the door already, so I'll wait for a bit.Elihttps://www.blogger.com/profile/03543293341085230171noreply@blogger.comtag:blogger.com,1999:blog-3891434218564545511.post-28709655317470829892009-12-04T10:10:50.900-06:002009-12-04T10:10:50.900-06:00Not a bad idea. However, I already know that curr...Not a bad idea. However, I already know that current jurisprudence goes against me. :-)Alexander R Prusshttps://www.blogger.com/profile/05989277655934827117noreply@blogger.comtag:blogger.com,1999:blog-3891434218564545511.post-68979599249140896192009-12-04T09:51:02.498-06:002009-12-04T09:51:02.498-06:00Perhaps a lawyer should take a look at this? ;-)Perhaps a lawyer should take a look at this? ;-)Anonymousnoreply@blogger.com