Friday Frivolity: Sid DeLong on Ancient Remedies

Should We Reintroduce Death, Dismemberment, and Damnation as Contract Remedies?
Sidney W. DeLong

Contract theorists such as Charles Fried and Seanna Shiffrin who emphasize promise as central to contract enforceability have criticized the expectation measure of damages because, by limiting the recovery for breach to a predictable amount, it encourages “efficient” or profitable breach of contract, and thus undermines the “sanctity” of promising. As they reason, an amoral contract promisor will deliberately breach a contract whenever it calculates that its financial gain from breaching will exceed the total cost it incurs by breaching, including the limited monetary damages it must pay its counterparty for any loss caused by the breach. To those who find all commercial contracts to generate promise-based, moral obligation, the limitation of contract damages to compensation makes immoral breaches more profitable.  To remove this incentive, they promote specific performance remedies and punitive damages. 

The general problem of efficient breach is not, of course, limited to contract law. Whenever tort remedies and criminal penalties are systematic enough to be predictable, an amoral rational actor will always violate the law whenever the expected gain from acting exceeds the actor’s expected cost of apprehension and punishment.  That problem has been with us ever since the first vengeful Israelite calculated that he was willing to pay the “eye for an eye” posted tariff for the satisfaction of blinding his adversary. Note too that this equivalency was a feature rather than a bug: Lex talionis was a notable advance in natural law because it limited criminal penalties to a proportionate level, preventing endless rounds of vengeance and feuding, while nevertheless forcing those hungry for vengeance to be satisfied with mere equivalency. 

The moral philosopher who first recognized positive psychic value of punishment to the punisher was Frederick Nietzsche (below) in the Second Essay of The Genealogy of Morals. Interestingly for those promise theorists who bemoan contemporary damages limitations, Nietzsche derived his insight about punishment not from criminal law but from contract law, specifically the law of debtors and creditors. He discovered an “equivalency between injury and pain” with its “origin in the contractual relationship between creditor and debtor, that is as old as the existence of legal rights at all, and in its turn points back to the primary forms of purchase, sale, barter, and trade.

This language would surely make contemporary promise theorists sit up. What would sanctify a promise more than blood for its breach?

Nietzsche continues:

In describing the utilitarian calculus involved in efficient breach of contract, both the moralistic promise theorists and the efficiency-driven law-and-economics crowd have completely overlooked the positive the utility of inflicting pain that Nietzsche celebrated. 

An Eye for an Aye: Dismemberment for Breach of Contract  

Mosaic law, in the first appearance of lex talionis, mandates dismemberment as the default tort remedy:

Money damages for loss of a fetus but in-kind dismemberment for injury to the mother. But in the historical development of the “financialization” of human values, the body became not only the in-kind forfeit for grievous battery but also a legal tender for money debts.  In The Common Law, Oliver Wendell Holmes Jr. noted that, under Roman law,

Roman lawyers specializing in bankruptcy law and collection law seem to have had a more exciting practice than their counterparts do today. 

Even outside bankruptcy, by contract a debtor’s body might also be posted as security for his debt. Shakespeare gave the most well-known literary example of the creditor’s right to the body of his debtor. The contract formation scene was admirably precise: 

Upon Antonio’s default, Shylock made formal demand for his pound of flesh in the ducal court. His legally valid claim was frustrated only by Portia’s masterfully strict construction of the forfeiture clause of the contract. 

Sadly, a debtor’s body remained legal tender into modern times. In the 19th century, debtors’ prisons forced the insolvent to pay up before gaining release. Ostensibly abolished by enlightened 20th-century democracy, in practice a form of debtors’ prison survives today, if creditors are persistent and cruel enough. See my earlier post on modern day debtor’s prison: incarceration for contempt as a Rule 69 procedure. A Brief, Procedural History of Debt Collection from Wager of Law to Debtor’s Prison (Modern creditors’ use of Fed.R.Civ.P. 69 to imprison defaulting debtors) 2021. 

Damnation. Not satisfied with the remedies of death or dismemberment, creditors in the Middle Ages sometimes demanded more: forfeiture of the debtor’s immortal soul as the price of default on a loan. Legal historians Pollock and Maitland report that, when in making a contractual promise under oath,

Medieval economists may have argued that a Christian debtor who thought himself assured of salvation after death might engage in opportunistic breach of his repayment contract even if the penalty for default was death. To deal with this risk he had to pledge his immortal soul, a formal process witnessed by a church official and apparently understood by all to be efficacious. Doubtless there came a time when that understanding began to wane and the pledge of faith lost its credibility. 

But the soul could be sold outright if the right buyer could be found. The Faust legend described one such transaction: 

“Write it in the manner of a deed of gift.” Then as now, using the appropriate legal form is always advisable for the protection of both parties, whether a man is selling his soul or a sack of potatoes. 

As it is described in the Marlowe quotation, I suppose the bargain between Faustus and Mephistophilis would today be classified as a “relational contract,” but its status as a sale of goods or of services would be uncertain.  In the unlikely event that a debtor and creditor today were to agree on the terms for the sale to the creditor of the debtor’s immortal soul, I can think of no reason why a court would not enforce it by any legal remedy as they might stipulate, just as I assume that contracts to perform exorcisms are fully enforceable. At the risk of offending the Establishment Clause, a Christian judge in a red state might well declare the sale of a debtor’s soul to be against public policy. But otherwise, enforcement of the deal seems feasible although adjudication of the post-mortem destination of the debtor would appear not to be justiciable. Cf. United States ex re. Gerald Mayo v Satan and His Staff, 54 F.R.D. 282 (W.D. Pa 1971) (Action against Satan dismissed because of impossibility of serving process on a supernatural entity.)

In sum, if we really wish to reform the law of contract remedies to more fully protect the sanctity of promising from the threat of efficient breach, the ancients have shown us the way.