Reply To: Contracts have same problems as Constitutions?


You wrote:“All the problems with they way the U.S. Constitution was peppered with “time bombs” (or had new interpretations created later) as described in the Hamilton episode (#1003) — don’t all the same problems apply to contracts in general? This seems to be a problem especially when people make contracts that are intended to continue even after the original signatories are no longer involved.

“For example, in Episode 932, Tom discussed “zoning” with Ben O’Neill — basically, how could you attach contractual obligations to all future transfers of a given property. The express purpose of such contracts is to bind future property owners to the terms the current property owners want to enforce.”

I think the answer to your question lies in the following considerations. Property isn’t just ‘stuff’; it’s the legal right to make use of that ‘stuff’ in particular ways. So, for example, if you rent a house from someone, you’re entitled to live in it but not to sell it as if it was yours. You’re also probably prohibited from opening a business in that house or sub-letting it. So, to take your example.

“Let’s say you inherit such a property. And let’s say you never particularly agreed to those contractual obligations. Nevertheless, you are lawfully bound to use your property in accordance with the previous contracts, even though you never gave explicit consent to those contracts.”

In law there used to be legal instruments known as restrictive covenants. These were conditions that limited in some way or another the use to which a property could be put, and, in the legal phrase, they ‘ran with the land’, which is to say that they were ad rem rather than ad personam. Someone inheriting such a property inherits it within the scope of the existing covenants – those covenants are part of the property he inherits. If he doesn’t want to take the property under those conditions he can decline the inheritance.

So, there’s no question of ‘never particularly agreeing’ to the contractual obligations. Either you took the property, and with it, the contractual obligations running with it, or you declined the whole bundle. Restrictive covenants used to be quite common but for various reasons (not least the exclusion of certain social groups from residential areas under their terms) they have been either severely circumscribed in their operation or abolished. (You’d need to check the law in your area/state for their precise current status.)