Implicit Contracts

Marko:

The anwser I was looking for was private courts.

Anyways I think Stranger nailed it on the head here.

Why should one place convert to nothing but explicit contracts just for your sake? How is that more moral, if what they have works for them?

It`s really not whole lot different from other things when you think about it. You would investigate what are the customs (rules) on a certain private road you are about to use, so why wouldn`t you investigate what are the meatball stands customs in swedish quarter before you visit there.

Not for my sake. For theirs. I have no motivation to obey your "implicit contracts" beyond your ability to use force, and, given that I, too, might have at my disposal a certain amount of force, and since I do not believe your "implicit contracts" to have any rightful hold on me, I would gladly use it if you tried to force me. I don't much care about your claims to arbitrary rights in your ridiculous property-based fiefdoms. But, then, my concept of property is not so absolute as yours, which is carried to an extreme and ridiculous degree.

i suppose this is only an issue that would trouble minarchists

JCFolsom:

Not for my sake. For theirs. I have no motivation to obey your "implicit contracts" beyond your ability to use force, and, given that I, too, might have at my disposal a certain amount of force, and since I do not believe your "implicit contracts" to have any rightful hold on me, I would gladly use it if you tried to force me. I don't much care about your claims to arbitrary rights in your ridiculous property-based fiefdoms. But, then, my concept of property is not so absolute as yours, which is carried to an extreme and ridiculous degree.

LOL, tough guy.  Here is another implicit contract for you. If you have no intention of obeying local custom, do not come to town. Do not feel yourself welcome. You will be expelled or lynched. Rightfully so.

Should the Amish post giant "don`t take pictures of me" signs or else you can photograph them at their place? Pay the girlscouts the 5 cents for the lemmonade you had and stop making a scene. There is no free lunch. You are a Randian, you should know that.

Marko:

LOL, tough guy.  Here is another implicit contract for you. If you have no intention of obeying local custom, do not come to town. Do not feel yourself welcome. You will be expelled or lynched. Rightfully so.

LOL, you murderous townie. I fail to see why your arbitrary mini-states are at all better than the unitary one that currently exists. Even worse, it's philosophically unjustifiable.

Marko:

Should the Amish post giant "don`t take pictures of me" signs or else you can photograph them at their place? Pay the girlscouts the 5 cents for the lemmonade you had and stop making a scene. There is no free lunch. You are a Randian, you should know that.

Not at all. I simply hold that the only absolute ownership is self ownership, and that every other rightful claim should be based on regular use. I've never seen any extremists, like yourselves, be particularly clear as to how homesteading, in the sense that it leads to perpetual property rights, is constrained. How much labor? Must you use fences (the encosure movement, by the way, was a horror that stole land held in commons from the peasants who had used it thus for generations)?

Your problem is that you fail to recognize that self-ownership TRUMPS other ownership. Your claim over your land ought only prevent from interfering with your regular use of it. It cannot give you any claim over THEM. If your use of that land IS making claims against them through "implied contracts", then you're just another robber who claims a bridge.

I, sir, am no Randian. I am a Mutualist, mostly.

 

Culture, custom etc. is organic and cannot be centrally planned by a philosopher. Implicit contracts are a way of communication, no less valid than explicit language based communication. The problem I see here is that you seem to believe language is the only form of communication. Implicit contracts will change over time, possibly even disappear; I mean who knows? But none of this Swedish meatball huckster stuff arising out of nowhere.

JCFolsom:

I am a Mutualist, mostly.

Don't do that to yourself.  You're better than that.

majevska:

Culture, custom etc. is organic and cannot be centrally planned by a philosopher. Implicit contracts are a way of communication, no less valid than explicit language based communication. The problem I see here is that you seem to believe language is the only form of communication. Implicit contracts will change over time, possibly even disappear; I mean who knows? But none of this Swedish meatball huckster stuff arising out of nowhere.

Well, sure. If you and I have been doing business for years, we can have an understanding without having to say it every time. What I object to is where others here think that if you are doing business with someone the first time, that you should be able to expect the same. It's ridiculous.

 

The meatball question is not terribly simple nor is it tricky.

Is it your obligation to understand the rules of the transaction before you proceed or is it the obligation of the offering party to explain the contract which you are going to agree to?

One of the gauges of a contract is if it is clear and understood to both parties. If in this case it was not clear and not made so, then there is no reasonable expectation of any recognizable contract.

I would argue it is the responsibility of the offerer to explicate the contract prior to any change of hands.

I have encountered this many times in foreign nations - children or even adults will come to you with a good and place it in your hands or on you in some fashion in order for you to "accept" it essentially forcing a contract on you. I know this and as a result don't take their items, you don't know the terms of their contract.

It is an impossibility however to charge you for something you did not agree to the terms of.

It is almost impossible to take this case past this context because I know of only a few contracts which were such that the parties did not understand the terms - but the logic is the same (the only one I know is the Maori people and the English explorers in New Zealand -  however that was malicious on the part of the UK).

liberty student:

Don't do that to yourself.  You're better than that.

Dude, I like you too, alright, but I follow where my reasoning leads. Have you ever actually read Studies in Mutualist Political Economy? Your least kewl aspect is a very reactionary tone against the left. You hate Brainpolice, so far as I can tell, and as he himself will tell you, I've moved to the left of him. Now, maybe your dislike for him is for more than just his leaning, I dunno, but I also don't see that you can react to lefterer opinions without an automatic hostility. So, don't tie me down with your hangups, man. I dislike some of Carson's connections, too. I think he's far too comfortable with actual de facto state socialists. That said, mutualism itself is more consistent, I believe, with a true and logical application of the concept of self-ownership than is Austrian economic theory, at least as put forward here.

AndrewKemendo:

It is almost impossible to take this case past this context because I know of only a few contracts which were such that the parties did not understand the terms - but the logic is the same (the only one I know is the Maori people and the English explorers in New Zealand -  however that was malicious on the part of the UK).

What really brought this up was a discussion of limited liability in corporations. I say that a corporation, the ones who want an unusual condition, must get an explicit contract from everyone who does business with them, at least the first time, in which the customer agrees to limited liability. Others say that if the info is available anywhere, the onus lies on the customer.

JCFolsom:

Your least kewl aspect is a very reactionary tone against the left.

It's because I think it's crap.

JCFolsom:

I also don't see that you can react to lefterer opinions without an automatic hostility.

I have yet to hear a left argument I can get behind.  I can't get behind the class theory, the poor idiot American workers at Wal-Mart destroying or homesteading the store, because the original investors lost their capital by giving it to an imaginary entity.  Or that corporations are not possible contractually, and thus are illegitimate.    I'll agree that they are unlikely in a free society, but possible.

JCFolsom:

I dislike some of Carson's connections, too. I think he's far too comfortable with actual de facto state socialists.

Hell yeah.

Look, I just don't buy the leftism.  I like you, try to show you respect.  But that thread about unicorns, c'mon man.  Seriously.  People go off on a tangent, and then they don't make much sense.  Sorta like Giles with his feudalism at times.

Maybe I am retarded and just not getting this.  I let our earlier discussion of a couple months ago die rather than argue, but I think your position on capital accumulation and deployment is not very good.  The thing I notice about a lot of those who are hard left, is that few if any of them have ever been an investor.  Or an entrepreneur.  Or managers.  And that's not to say that those are better or more moral positions, but I keep hearing stupid crap about wage slavery (FSK lately) from people who don't have a clue how good they have it, and how many opportunities they have to make whatever they want of their own situation.  There is nothing to stop most of those losers at Starbucks in the IWW from saving some money, and starting their own business, or selling their services privately.  The problem isn't Starbucks, it's that their horizon doesn't expand beyond being the Starbucks Barista of the month because they have high time preferences, and that is everyone else's problem but their own.  They seem to think they have a right to impose the costs and consequences of their high time preferences on the low time preference owners and shareholders.

Which is actually one thing you have written before, and I understand like this.  Workers with short time preferences, should be able to homestead the property of people who have deferred consumption and saved, exercising low time preference.  Yes, some people come by capital illegitimately.  But not everyone.  I have never seen you distinguish between the individual shareholder but rather refer to the entire group as collective evil doers.  Well, by that same standard, we're all tainted, because we all interact with the state, as much as we hate it.

Maybe some of this applies to you, and maybe some of it doesn't.    I don't know.  I'm just dumping out what comes into my head as fast as I can.

So when you say I have an anti-left fanaticism, you are correct.  I hate socialism.  I hate democracy.  I hate marxist class theory (poor vs. rich, rather than the Hoppean position of coercers versus the coerced, recognizing that the coercers in a democracy are distinguished by how they interact with the state, not by their success or lack thereof in the marketplace).  I also hate fascism.  I hate Republicans, Democrats, Liberals and Conservatives (in the political sense).  The issue is, on this forum, the guys on the left describe themselves based on the political spectrum, and most of them are again, angry young men who have never built or owned anything.  Who have never had to manage, care for, and work with their fellow employees but from the position of the owner or manager.  In the theoretical world of blogs and the echo chamber of the ALL, agorism sounds wonderful.  In a world with 6 or 8 billion people, many of whom see the state as a liberator and populist tool, trading organic tomatoes for pot, or making wood carvings in your garage isn't going to cut it.  It's wonderful idealism.  It's practically naive.  Which is probably the +/- of being young.

There's more, but I have to get some work done.  I hope you don't take this post with hostility.

Also, my problems with BP have little to do with his leftism.  Some people just don't mix well, and I'll leave it with that rather than invite the third party entrance to this side discussion.

liberty student:

I have yet to hear a left argument I can get behind.  I can't get behind the class theory, the poor idiot American workers at Wal-Mart destroying or homesteading the store, because the original investors lost their capital by giving it to an imaginary entity.  Or that corporations are not possible contractually, and thus are illegitimate.    I'll agree that they are unlikely in a free society, but possible.

You won't find me talking too much about class theory. As for the idea that corporations are not possible contractually, I may have overstated that point. I think that corporations, or businesses structured very much like them could exist in theory, I just don't see why you'd do business with them if there were other alternatives.

liberty student:

The thing I notice about a lot of those who are hard left, is that few if any of them have ever been an investor.  Or an entrepreneur.  Or managers. And that's not to say that those are better or more moral positions, but I keep hearing stupid crap about wage slavery (FSK lately) from people who don't have a clue how good they have it, and how many opportunities they have to make whatever they want of their own situation.  There is nothing to stop most of those losers at Starbucks in the IWW from saving some money, and starting their own business, or selling their services privately.  The problem isn't Starbucks, it's that their horizon doesn't expand beyond being the Starbucks Barista of the month because they have high time preferences, and that is everyone else's problem but their own.  They seem to think they have a right to impose the costs and consequences of their high time preferences on the low time preference owners and shareholders.

This, I think, is actually where YOUR class conciousness comes in, even though you don't put it in those terms. You try to qualify it, but what you're really saying is that the working class just can't have the perspective, and to your mind the more valid perspective, of the manager class. As for the IWW, their work on behalf of some people is crap, but you've never been able to show how general strikes and the like violate the NAP. You can't prevent people from organizing, and you can't prevent them from refusing to work, and they commit no crime by doing so. You must therefore, if you truly want a free market, accept union organizing as a potential factor.

liberty student:

Which is actually one thing you have written before, and I understand like this.  Workers with short time preferences, should be able to homestead the property of people who have deferred consumption and saved, exercising low time preference.  Yes, some people come by capital illegitimately.  But not everyone.  I have never seen you distinguish between the individual shareholder but rather refer to the entire group as collective evil doers.

My views are continually evolving as I assimilate more information. I tend to find a viewpoint that clicks, and then get overzealous and sloppy about it. After awhile, I cool down, and can present it more logically. In this case, the evil of the shareholders or lack thereof is irrelevant. I dispute the lasting significance of a claim over something one does not actually use regularly themselves, and I do not count hiring someone else to do it as you yourself using it. Indeed, because of other factors I've mentioned elsewhere, sustained profits derived from wage labor is certain evidence that the free market has been distorted in favor of the capital-holder versus the wage worker (okay, that does sound a LITTLE class theory). Does that mean that there aren't going to be too many lone purchasers of high-production capital? Likely so. It's just a different paradigm, man, a different idea of property rights. 

liberty student:

There's more, but I have to get some work done.  I hope you don't take this post with hostility.

No worries, man. We can be civilized here, and I've taken no offense. Indeed, I am guilty of many of the flaws you accuse me of, and others besides. I tend to be a bit unfair with people, in a way. I am young, and my views are protean, so something you see from me one day might not be what I believe the next. And, perhaps, since you are willing to talk so civilly to one who holds to something of a modified labor theory of value, you aren't quite as reactionary as I've perceived you to be. Talk to ya later.

 

JCFolsom:

Not at all. I simply hold that the only absolute ownership is self ownership, and that every other rightful claim should be based on regular use. I've never seen any extremists, like yourselves, be particularly clear as to how homesteading, in the sense that it leads to perpetual property rights, is constrained. How much labor? Must you use fences (the encosure movement, by the way, was a horror that stole land held in commons from the peasants who had used it thus for generations)?

Your problem is that you fail to recognize that self-ownership TRUMPS other ownership. Your claim over your land ought only prevent from interfering with your regular use of it. It cannot give you any claim over THEM. If your use of that land IS making claims against them through "implied contracts", then you're just another robber who claims a bridge.

That is all nice.but you ate the meatball, remember? The person manning the stand does not claim ownership over you, but he did claim ownership over his meatball. Why do you want to steal the meatball from him? You want to deprive him of the fruits of his labour? Be a good mutualist. Show him mutual respect. He showed it to you by assuming you knew the local convention.

And anyways, he regularly uses the sidewalk. He manns a meatball stand from it. So he owns it however you look at it.

JCFolsom:

LOL, you murderous townie. I fail to see why your arbitrary mini-states are at all better than the unitary one that currently exists. Even worse, it's philosophically unjustifiable.

Townie? Yeah but not necessarily. It applys just as well to rural or tribal areas. A village of Papuan natives, a Hippie commune or a socialist kibbutz it doesn`t really matter.

AndrewKemendo:

 

I would argue it is the responsibility of the offerer to explicate the contract prior to any change of hands.

I have encountered this many times in foreign nations - children or even adults will come to you with a good and place it in your hands or on you in some fashion in order for you to "accept" it essentially forcing a contract on you. I know this and as a result don't take their items, you don't know the terms of their contract.

It is an impossibility however to charge you for something you did not agree to the terms of.

I think this is a different but related issue. Those children in "foreign nations" you mention are fraudsters. They can not fall back on local custom. They do not have a native base of customers, instead they spend their time specificaly targeting outsiders (foreign tourists and provincials) for which they know in advance that they won`t be able to determine wether such a convention exists localy or not.  

No court in the world would rule in their favour. Particularly since they are pests.

It is a different case however if we say have a soup kitchen that every day serves hundreds of people and which targets the locals as their customers and they one week forget to re-attach a sign that stated the price for the soup after it was blown away or vandalised. Here a tourist vandering in and grabbing a plate after being handed one (since the seller had every reason to assume he knows about the price, like all the other customers of his) must pay.

Did it ever came across you, that, to take possesion of something, you need to make sure that it is in a natural state?

If it is obviously not, as in the case of meatballs(that do not come as a natural gift) you can not claim they are free. And you can even claim less that you did not know they are not free. Because, if something is not natural, or not obvisouly given up - which in the meatball case is hard to argue, as they are fresh enough to not be rotten yet, i suppose- it is up to you to find out under what conditions the owner might exchange.

End of a silly case.

JCFolsom:

What really brought this up was a discussion of limited liability in corporations. I say that a corporation, the ones who want an unusual condition, must get an explicit contract from everyone who does business with them, at least the first time, in which the customer agrees to limited liability. Others say that if the info is available anywhere, the onus lies on the customer.

I would say it is actually a question of wether limited liability is common knowledge or not. 

A different law can not apply to you just because you are unusually ill-infrormed and do not know things which are common knowledge. But also making some information readily avaliable on your website grants you no special benefit if actually it is not already commonly known.

Anyway, I think there would be much less gray area with private courts, because I think they would be more indecisive in gray area matters. State claims it is a final arbiter so it must rule one way or another in every case, but a private court could refuse a case, fearing a lose-lose situation publicity wise, thus gray areas would be bad for buisiness.


EDIT: In practice that means that if you live in lower Manhattan and lend money to a corporation accross the street from you then you can not claim you did not know about corporate limited liability because in your locale that is common knowledge. However if you are a primitive tribe in the Amazonian and you have dealings with a corporation regarding your forrests then they must explicitly mention (and explain!) their limited liability in the contract and can not play dumb and assume it is common knowledge in the Amazonian because it is obviously not part of tribal folklore and local custom.

In between there is a lot of gray area, but I think the key is locale. Is something a convention localy? And I mean real convention. Not everything a state enforces today is a true convention.

liberty student:

I have yet to hear a left argument I can get behind.  I can't get behind the class theory...

So when you say I have an anti-left fanaticism, you are correct.  I hate socialism.  I hate democracy.  I hate marxist class theory (poor vs. rich, rather than the Hoppean position of coercers versus the coerced...

The French Liberals who developed what we today call the Libertarian Class Theory were thought of as being on the left though. 

You`re using the word "left" as if it meant something. It doesn`t.

 

Marko:

I would say it is actually a question of wether limited liability is common knowledge or not. 

Who is to decide what "common knowledge" is? And how does this "common knowledge" replace natural rights?

I don't get the sense behind the whole discussion.

There are no implicit contracts in the understanding of liberalism. A contract is always explicit. Whatever a cooperation offers to exchange is a question of the cooperation. If a cooperation decides that it offers a certain item without any warrenty, than it is free to do so. On the other hand it is up to the buyer to understand under what terms he buys and what kind of property right is handed over through the exchange.

What kind of liabilities are limited in a Ltd.? Answer: Liabilities that are pressed onto them by state regulations. It is those liabilities a Ltd. wants to avoid.

As I said, I don't get the point. In a perfect free market there are no cooperations in the sense we have them today, being artificial structures set up by state regulations and licensed to act in a certain way.

 

I don`t know what are you trying to say. You are probably right that nothing like this would in reality apply to corporations, they would put everyting in writting. But the original poster brought it up and I offered help, as in how would it be cleared up under those conditions. That does not invalidate the conditions themselves. Fact is there are huge amounts of unwritten rules (traditions) in a given society and they are no less valid for it. Yes these rules are based on natural rights, the same as written law is based on natural rights. But when making a ruling on a practical case it is the written law or traditional custom (common knowledge) which is really the immediate guiding principle of the courts.

Marko:

I don`t know what are you trying to say. You are probably right that nothing like this would in reality apply to corporations, they would put everyting in writting. But the original poster brought it up and I offered help, as in how would it be cleared up under those conditions. That does not invalidate the conditions themselves. Fact is there are huge amounts of unwritten rules (traditions) in a given society and they are no less valid for it. Yes these rules are based on natural rights, the same as written law is based on natural rights. But when making a ruling on a practical case it is the written law or traditional custom (common knowledge) which is really the immediate guiding principle of the courts.

 

Wasn't meant as a critique though. I don't like to go down the path of so called "tradition" and it consituting "rules" or laws. A rule or law, from my point of view, is not valid because it is a "tradition" in a given society but because it does not conflict with the axiom of selfownership. If a group (e.g. society) only has to wait for a rule to become a "tradition" to make it valide, than here we would have a way to switch from individualism to collectivism - through tradition.

A tradition that has a rule, that implicit contracts are permissible, seems not to be coherent with natural rights to me. I might be wrong on that though. And I can not find a written law that is based on natural rights, at least none, that hasn't put natural rights aside when it comes to group intrest

Well in that aspect you are of course right. Natural law trumps tradition. Justice trumps written law.

But the thing is law making is stil a process. We slowly add to the body of law through our exploration of natural law. Tradition (at least the parts pertaining to law) should thus really be understood as the accumulated understanding of natural law in a given culture as applied to specific practical situations.

Of course if a custom is actually in conflict with natural law then the understanding should be corrected and the custom reversed.

Of course that could mean that this whole accumulated body of law is superflous, if natural law trumps accumulated regulation every time then you can start from stratch with every new case and  rule with natural law as the only reference.

And it does except that there are cases where knowing the natural law is not enough. Where you must also take into acount the conventions which exist in a society (provided the conventions are not against natural law, which most of them are not).

Lets say there is a culture whose tradition includes a custom of exchanging gifts connected to some notable event. Lets say the custom is such that should one of the parties in the exchange offer a gift whose value would in this society be deemed of dramaticaly lesser value than the gift offered by the other party, then the party that offered less in exchange will be deemed to have disgraced itself and insulted the other party which is therefore deemed entitled to keep the lesser gifts of the other party, but also take back its own as compensation for the insult. 

Now lets say we are talking about a case where I lived in the Khalahari desert for ten years among Bushmen who for the sake of the argument practice this custom. Lets say I partook in such an exchange of gifts with a local and I gave him an ox while he gave me a glass pearl. Obviously I insulted him gravely and he is therefore within his rights to keep both, albeit I did not know a glass pearl is worth a fortune to them .

Now is this natural law? Yes it is. But you could not make this (correct) ruling based on natural law only. You must also know what is the local custom and the guide to that is wether it is common knowledge localy.