Reply To: Contracts have same problems as Constitutions?


Hello again, seraphim.

“The consent issue wasn’t really my primary consideration, but it does seem important.”

Did I miss the point?

“Restrictive covenants are the only mechanism with which I am familiar for making collective decisions about property usage (e.g., zoning, Homeowners Associations, apartment complexes with common areas, etc.) in an anarcho-capitalist society. In such a society, I imagine that over time, most properties would have some kind of restrictive covenants attached to them, except maybe in undeveloped areas.”

That’s possible, but I don’t imagine it’s in any way necessary or even likely. Restrictions on alienability of property maximise control but minimise transferability and so, to some extent, value.

“In such a society, if you accept title to a property — or accept a rental agreement — or in general, if you accept the terms of usage of any given property — then you are giving consent to the restrictive covenants associated with those properties. Even if you didn’t read the contractual details, you are still giving implied consent. So if you are born into a developed area and either own property or use property in that area, you are giving consent (explicit or implied) to all the restrictive covenants involved in those properties. Is this correct?”

I would say, again, that property is a bundle of rights to make use of x, not x itself. That being so, when you take title to a specific property, you’re inherently taking over a particular bundle of rights. If those rights are limited in some way, then that’s part of the property.

Historically, restrictive covenants weren’t the only ways to limit the use of land. The entail was a device invented to keep property in a particular family. The holder of the property for the time being was entitled to use in in various ways but not, for example, to waste. An example of waste would have been the cutting down of all the trees on the estate during his tenure, leaving none for his heir. However, and this is important, it was possible to block the entail if agreement could be reached between the holder and his heir and possibly (but I’m not certain) in other ways. Similarly, even if restrictive covenants existed in a libertarian society, it should be possible to set up some way in which they could, with the consent of the interested parties, be circumvented or abolished.