178 JOEL FENBERG are wronged and harmed on balance by them. These prohbtons would be legtmate only when an nterest-connected nongrevance evl s extreme. Ths result appears to be a departure from the strct letter of the lberal's doctrne, but have clamed that t accords wth the anmatng humane sprt of that doctrne. Smlarly, concluded, wrongful lfe suts aganst a bologcal parent could concevably be legtmate, even for harms that are not worse than nonexstence. That s partly because n the cvl, as opposed to the crmnal law, a party may be justly answerable for another's harmful condton, even though that condton s not, strctly speakng, hs dong. Phlosophy, Unversty ofarzona Socal Phlosophy & Polcy Vol. 4 ssue 1 SBN 0265-0525 CONTRACT REMEDES AND NALENABLE RGHTS *. NTRODUCTON Two knds of remedes have tradtonally been employed for breach of contract: legal relef and equtable relef.' Legal relef normally takes the form of money damages.' Equtable relef normally conssts ether of specfc performance or an njuncton - that s, the party n breach may be ordered to perform an act or to refran from performng an act.' n ths artcle wll use a "consent theory of contract" to assess the choce between money damages and specfc performance. Accordng to such a theory, contractual " wsh to thank the followng people for ther most helpful comments on an earler draft: Larry Alexander, Stuart Deutsch, Rchard Epsten, Davd Gerber, R. 1-1. Melmholz, Marty Maln, Emlo Pacheco, Ellen Frankel Paul, and Chrstopher Wonnell. Fnancal support for ths research was provded by the Marshall D. Ewell Research Fund of..t. Chcago-Kent College of Law. ' Legal relef was relef avalable n "courts of law." Equtable relef was extraordnary relef orgnally avalable from the Kng, then from the Kng's Chancellor, and fnally from the Chancery courts or "courts of equty." See Dan B. Dobbs, Hat~dbook on the Lam ofremedes (St. Paul, MN: West Pub. Co., 1973), pp. 24-34 (descrbng the hstorcal development of courts of equty and the dstncton between legal and equtable relef); E. Allan Farnsworth, Contracts (Boston: Lttle, Brown & Co., 1982), pp. 818-824 (same). These were not, however, the only court systems that coexsted n England. See Harold Berman, Law and Rmoluton (Cambrdge, MA: Harvard U. Press, 1984), p. 10 (stressng the mportance of competng courts to the Western legal tradton). The hstorcal pcture s not qute ths clear-cut. For one thng, medeval Englsh common law courts may not have had as strong a preference for money damages as s commonly assumed. See Frederck Pollock and Frederc Matland, The Hstory of Englsh Law, Vol. (London: Cambrdge Unv. Press, 2d ed., 1898), p. 595 ("[Elven when the source of the acton s n our eyes a contractual oblgaton, the law tres ts best to gve specfc relef.") For another, durng most of the medeval perod, the effectve remedy for breach of most contracts n the common law court was enforcement of a penal bond. See generally, A. W. B. Smpson, A Hstory of the Common Law of Contra& (Oxford: Oxford Unv. Press, 1975), pp. 88-125. Thus, every sort of oblgaton could be reduced to a monetary one or a "debtn by the party n breach. Begnnng n 1283, a debtor's lablty to pay could be enforced by mprsonment; see Smpson, p. 87. A varety of dfferent contractual remedes have tradtonally been avalable - for example,._replevn, reformaton, recsson cancellaton, or specfc resttut~n. See D. Dobbs, Handbook, $p. -3; E. ~ a m s w o d t s pp., 815-mamages, specfc performance, and njunctons, however, are the types of remedes most commonly used to enforce a contract. n contrast, recsson and cancellaton are used to avod enforcement of a contract and reformaton s used to change the terms of a contract.
180 RANDY E. BARNETT oblgaton s dependent on more fundamental enttlements of the partes and arses as a result of the partes' consent to transfer alenable rght^.^ My thess wll be that the normal rule favorng money damages should be / / replaced wth one that presumptvely ance - f r unless the. partes have consented to money damages nstead. The prncpal obstacle to such an approach s the reluctance of courts to specfcally enforce contracts for personal servces. The phlosophcal dstncton between alenable and nalenable rghts bolsters ths hstorcal retcence, snce a rght to personal servces may be seen as nalenable. wll then explan why, f the subject matter of a contract for personal servces s properly confned to an alenable rght to money damages for falure to perform, specfc enforcement of such contracts s no longer problematc. Fnally, shall consder whether the subject matter of contracts for corporate servccs s properly confned to money damagcs lke contracts for personal servces, or whether performance of corporate servces can be made the subject of a vald rghts transfer and judcally compelled n the same manner as contracts for external resources. 11. REMEDES FOR BREACH OF CONTRACT 1. The Present Law Governng the Choce of Contract Remedes. The present rule governng legal and equtable remedes can be' smply stated: Legal relef - money damages - s avalable as a matter ~f rght. Equtable relef - specfc performance or njuncton - s avalable at the dscreton of the court upon a showng by the party seekng enforcement that legal relef s somehow "nadequate." Put another way, money damages are the presumptve form of remedy for breach of contract. Specfc performance orders and njunctons are exceptonal forms of contract remedes. Whle the rules governng the choce of remedes can be comple~,~ the followng summary should suffce for purposes of ths dscusson. Money damages are sad to be nadequate when they fal to fully compensate the vctm of the breach, as, for example, when the tem contracted for s "unque" and therefore unavalable from another source, or when the amount of monetary damages s dffcult to prove. Tradtonally, land s presumed to be unque-and specfc performance has therefore come to be the presumptve form of relef n such cases. For contracts nvolvng other ' See Randy E. Barnett, "A Consent Theory of Contract," Columba Law Revew, vol. 86 (1986), pp. 269-321. Two excellent artcles descrbe n some detal and crtcally assess the present law governng ths subject. See Anthony Kronman, "Specfc P m e, " Unversty of Chcago Law Revew, vol. 45 (1978), pp. 35 1-382; Alan Schwartz, "The Case for Specfc Performance," Yale LawJournal, vol. 89 (1979), pp. 271-306. CONTRACT REMEDES AND NALENABLE RGHTS 181 types, of property, the burden tradtonally has fallen on the vctm of the breach to prove unqueness of unavalablty. Fnally - these rules and presumptons notwthstandng - specfc performance has tradtonally been unavalable to enforce contracts for the provson of personal servces, even f these servces can be shown to be unque and damages therefore are n fact nadequate. Courts have gven two reasons for ther reluctance to award specfc performance. Frst, they have sought to avod the task of admnsterng specfc performance decree^.^ t s sometmes dffcult for a court to montor the qualty of performance or to assess clams that performance s not beng approprately pro~ded.~ Second, specfc performance decrees for breaches of personal servces contracts have been thought to pose moral problems as.well, "because they are perceved to be substantvely unacceptable lmtatons on personal freed~m."~ Forcng someone to perform a contract strkes courts as n~oluntary servtude and s sad by judges to be aganst "publc p~lcy."~ Fnally, a fundamental premse of contract damages has tradtonally been that, whle vctms of a breach should be fully compensated for the njury caused by the breach, they should not be overcompensated - that s, they should not be placed n a better poston than they would have been n had the contract been performed. f most vctms would be completely and more effcently compensated by money damages, and f specfc performance was generally perceved by contract breakers as a more onerous sancton, then there s a rsk that a general presumpton favorng specfc performance But see Schwartz, "The Case for Specfc Performance," pp. 292-296 (dsputng the clam that specfc performance decrees generally and unavodably create admnstratve problems). Partly for ths reason courts have been somewhat receptve to mposng njunctons on partes n breach. "nstead of orderng that the act be done, as a court would n grantng specfc performance, the court orders forbearance from nconsstent acton." E. Farnsworth, Contracts, p. 824. For example, a person who promsed to work for another mght be barred from obtanng alternatve employment elsewhere. n the analyss that follows, shall not separately consder such orders. f a contract tself specfes that the party n breach should refran from performng a gven act - as t dd n the famous njuncton case oflumlg v. Wagner, 1 DeG. M. & G. 604,42 Eng. Rep. 687 (Ch. 1852) - then an njuncton s a form of specfc performance. f there s no such term (ether expressed or mpled-n-fact) n the agreement then there s no consensual bass for such relef. Kronman, "Specfc Performance," p. 372. See also Schwartz, "The Case for Specfc Performance," pp. 296-298 (dscussng specfc performance and lberty). See E. Farnsworth, Contracts, p. 838 (specfc performance "may be refused on the ground that, though the act or forbearance that would be compelled s not aganst publc polcy, the use of compulson to requre that act or forbearance s aganst publc polcy.") A "publc polcyn ratonale usually obscures rather than llumnates the true reasons for a judcal decson. Whle the nvoluntary nature of court-ordered labor or "servtude" s obvous, t s less clear exactly why such an order s unjustfed when the commtment beng enforced was orgnally consensual. n Part 111, the phlosophcal ' tncton between alenable and nalenable rghts wll be employed to provde support for th&dng judcal sentment. -
182 RANDY E. BARNETT would gve many f not most vctms the ablty to extort a pck- ' for acceptng money damages.'' - - d mlum n return 2. Problems Wth the Present Approach. Gven that no system of proof s perfect, the allocaton of the burden of proof has an mportant. effect on allocatng the costs of error." The current approach to contract remedes places two burdens on vctms of breach. Frst, to receve money damages, vctms must prove wth a far degree of certanty that an njury has n fact been sustaned and that the njury has a determnate value. But t may sometmes be dffcult to prove what njures have been sustaned or to place an accurate monetary value on those njures whch can be proved. Therefore, a fully compensatory judgment may be hard to obtan.12 n contrast, by gvng the vctm what he barganed for, specfc performance may n many cases better assure that the vctm s fully compensated. Second, to get specfc performance, vctms must somehow prove that money damages are nadequate. When money damages are n fact nadequate, but nadequacy cannot be proved or the court errs n assessng the evdence, the vctm of breach suffers under the current approach. Suppose nstead that the burden was reversed and the party n breach had to show why damages were adequate. Wth such a rule, the party n breach would suffer when damages are n fact adequate, but proof of adequacy cannot be made out.or the court errs n assessng the evdence. The burden of provng the exstence of a contract and the fact of breach s properly placed on the vctm of a breach. But when the vctm has met these twn burdens and t comes tme to choose among remedes, justce would seem to requre that - as between the party who has been proved to have breached a. contract and the nnocent vctm of the breath - the former should bear the greater rsk of adjudcatve error. Moreover, a requrement that all vctms of breach (except breaches ' 'O See Schwarz, "The Case for Specfc Performance," pp. 284-291 (explanng the alleged problem wth such expos& negotatons and questonng ts sgnfcance). ' The phrase "costs of errar" refers to "enforcng contracts that should not be enforced and 1... not enforcng contacts that should be enforced." Rchard A. Epsten, "Unconsconablty: A Crtcal Reapprasal," Journal of Law and Economcs, vol. 18 (1975)) p. 300. Such errors of judgment are an nevtable product of usng general rules of conduct, burdens of proof, and fallble factfndng. For example, by requrng more evdence that a contract exsted before grantng relef, fewer "false" contracts wll be erroneously enforced. At the same tme, however, more "truen contracts wll erroneously go menforced. Conversely, by makng the burden of T proof less strngent, fewer "true" contracts wll erroneously go unenforced and more "false", contracts wll erroneously be enforced. See generally, George Sher, "Rght Volatons and njustces: Can We Always Avod Trade-offs?" Ethcs, vol. 94 (1984), pp. 212-224..+ z See Schwartz, "The Case for Specfc Performance," p. 276: "[]* many cases damages actually are undercompensatory." CONTRACT REMEDES AND NALENABLE RGHTS 183 nvolvng land) show that money damages are nadequate may conflct wth the reasonable expectatons of many, f not most partes to contracts. Persons wth common sense - that s, those who have not taken a frst-year contracts class (or been counseled by a lawyer who has) - would naturally assume, for example, that when a good s pbrchased the purchaser obtans a rght to the good. They would not assume that the seller has an opton to delver or pay damages - f damages can be proved - unless the vctm can prove that the good s unque. When such persons enter a contract, the terms of ther bargan are unlkely to reflect the ncreased rsk of enforcement error that, unbeknownst to them, contract law mposes on them. Ths becomes a problem when one party s knowledgcable about contract law and obtans the commtment of the gnorant party at a lower prce than would be obtaned f the rules of contract remedes better comported wth common sense. Whle some dsparty of nformaton between partes s nevtable and rremedable, nformaton dspartes concernng the law of contract tself should be mnmzed. Fnally, placng the burden of showng nadequacy of damages on the vctm of a breach means that those vctms who need specfc performance must pay a hgher prce to obtan justce than those vctms requrng only money damages - a burden that s magnfed n a legal system that does not compensate successful partes for ther legal expenses. One reason for such dscrmnaton mght be hgher costs assocated wth enforcng a specfc performance decree. But enforcement costs wll not necessarly be hgher for some categores of contracts - for example, contracts callng for the delvery of dentfable goods. l3 Why not, then, smply reverse the presumpton? Why not make specfc performance the presumptvely favored form of relef as some have proposed?14 Notwthstandng the problems of admnstraton and overcompensaton dscussed above, gvng all vctms of breach a presumptve rght to specfc performance mght, on balance, be preferable to the present rule. Gven the often serous problems of assessng the true extent of njures arsng from contract breaches and the other neffcences of obtanng contractual enforcement through the legal system, vctms of breach would be better protected by a rule makng specfc performance more generally avalable.5 And by havng chosen to break ther contracts, partes n breach l3 See bd., p. 294. (When effcency gans of specfc performance are ncluded n an analyss of ts costs, "t s mpossble to say whether these gans would exceed the ncrease n admnstratve and judcal opportunty costs that the avalablty of specfc performance would engender.") l4 See, e.g., bd. S bd., p. 291. "[Elxpandng the avalablty of specfc performance would produce certan effcency gans: t would mnmze the neffcences of undercompensaton, reduce the need for lqudated damage clauses, mnmze strategc behavor, and save the costs of ltgatng complex damage ssues."
/ t 184 RANDY E. BARNETT can be sad to have brought upon themselves whatever dffcultes a reversal [ of the presumptve remedy would create. There s one mportant obstacle to such a reversal. Such a rule would 1 seem to at least presumptvely requre the specfc enforcement of personal servce contracts. Even f an "excepton" of the sort that currently exsts were created to exempt such contracts from specfc enforcement, many judges are understandably reluctant to rcspcct ad hoc and vague "publc polcy" 1 lmts on ther power to grant relef to apparently deservng vctms. As a! -; result, when personal servces are unque (as they often are) and money damages are therefore truly nadequate, courts are always sorely tempted to compel performance.6 We mght, however, resolve ths obstacle to specfc performancc f we better understood why specfc performance s approprate n contracts nvolvng the sale of goods and napproprate n contracts nvolvng pcrsonal servces. n the balance of ths paper, hope to show how a "consent theory of contract," whch looks to an underlyng theory of enttlements to explan contractual oblgaton, asssts such an understandng. 111. ASONSENT THEORY OF CONTRACT 1. A property rghts concepton of enttlements suggests that rghts are &$u constred as enkablec&ms to acqure, use, and t 'ansfer resources n \ the world - clams to control one's person and e&rnal resources.17 A consent theory of contract specfes that an enforceab$ contract requres the satsfacton of at least two condtons. Frst, the subjth of a contract must be a \ morally cognzable rght possessed by the transferor that s nterpersonally f transferable, or "alenable,"'8 Second, the holder of the rght must consent to, ts transfer.19 Thus, commtments wll generally be enforced only f they 1. manfest to the promsee the promsor's assent to transfer rghts." l6 See, e.g., De Rvafnol v. Corsett, 4.Page Ch. (N.Y.) 264, 270 (1833) ("... a brd that can sng and wll not snq~must be made ung.") l7 See Randy E. Barnett, "Pursung Justce n a Free Socety: Power v. Lberty," Crmnal Justce Ethcs, vol. 4 (Summer/Fall, 1985), pp. 50-72 (dscussng the possble bass and scope of. a property rghts concepton of enttlements); and "Contract Scholarshp and the Reemergence of Legal Phlosophy" (book revew), Hamard Law Revew, vol. 97 (1984), pp. 1223-1245 (attemptng to place recent nterest n enttlement theores n a hstorcal context). l8 n contrast, the object of a contract s thejurpose of the contract, what the partes hope to accomplsh by enterng nto a contract. - 4.,, Lb > tl 4 ~ b '?- l9 A more extended dscusson of ths concepton of contractual &lgaton can be found n Barnett, "A Consent Theory of Contract." 20 Two other ways of expressng ths concept of contractual oblgaton are "a manfestaton of an ntenton to be legally bound" or "a manfestaton of an ntenton to create legal relatons." Such expressons, whle useful, do not stress the enttlements-dependent nature of contractual relatons. Note also that there are certan nstances where a consent theory would favor subjectve assent over a manfestaton of assent. See Barnett, "A Consent Theory," pp. 307-309. ----- CONTRACT REMEDES AND NALENABLE TGHTS 185 -- d 3 The fact that there must be a consent to transferng ts suggests that the ssue of contractual enforceablty could potentally turn on one of two nqures nto the subject matter of the contract. Frst, are the rghts that are allegedly beng transferred to the promsee n fact held by the pr~msor?~' -For example, a contract to transfer rghts to goods that are owned by somconc clsc would not ordnarly bc enforceable because the transferor docs not possess thc rghts sllc purports to transf~r.~~ Second, unless we conclude that every rght s potentally transferable, t would also be approprate to determne whether the rghts that are the subject of a purported transfer agreement are the,knds of rghts that can be transferred. n other words, n determnng the enforceablty of an agreemcnt, thc prcscncc of conscnt to transfer rghts, whlc a ncccssary clemcnt of a contract, s not a suffcent ground to enforce a commtment. n certan cases, t may also be mportant to dscern whether the rghts-transfer beng consented to nvolves alenable or nalenable rghts.23 For f the rght to personal servces, for example, s nalenable, then such a rght: cannot be made the subject of a vald, enforceable rghts transfer. V. NALENABLE RGHTS 1. D4nng lnalerzable Rghts. The dstncton between alenable and nalenable rghts has been wdely dscussed n recent years.24 To characterze a rght as nalenable s to clam that the consent of the rght-holder s nsuffcent to extngush the rght or to transfer t to another. That whch s nalenable... s not transferable to the ownershp of another. So an nalenable rght s one that may never be waved 21 Whle use the standard terms "promsor" and "promsee" n the text, a consent theory s napposte to a promse theory of contract. Compare the alternatve defntons of consent, supra note 17, whch speak of "legally bound" and "legal relatons" wth the defnton of a promse found n the Res~a~emetz~ (Second) of Contracts (St. Paul, MN: Amercan Law nsttute Pub., 1981), 52(1): "A promse s a manfestaton of ntenton to act or refran from actng n a specfed way, so made as to justf a promsee n understandng that a commtment has been made." And the authors of the Reslatement deny that a manfested commtment to be legalb bound s essental to a contract. See Restatement, 921: "Nether the real nor apparent ntenton that a promse be legally bndng s essental to the formaton of a contract...." Thus, a consent theory s dstnct from most dscussons of contract that emphasze the moral duty to keep one's promses; see Barnett, "A Consent Theory," pp. 304-305. l2 Once a contract has been performed, the legal system has come to favor those who purchased goods n "good fath" over the orgnal ttle holder. Ths ssue s somewhat dstnct from whether the purchaser can enfrce such an agreement when the promsor fals to perform and, as such, s beyond the scope of ths essay. 23 A purely promse-based theory would have dffculty explanng the source of such a dstncton. 24 Much of the recent legal!terature was stmulated by Gudo Calabres and A. Douglas '/ Melamed's semnal artcle, "?roperty Rules, Labl ablty: One Vew ofthe Cathedral," Harvard Law Rajerv, vol. 85 (1972), L/
186 RANDY E. BARNETT or transferred by ts possessor.... Thus what s proscrbed by nalenable rghts are certan relatonsh$s or agreem~nts.~~ d Such a clam must be dstngushed - from a clam that a rght - s forfetable. t C "A person who has forfeted a rght has lost the rght because of some offence or wrongdon&t has been noted that one who wshes to extngush or convey an nalenable rght may do so by commttng the approprate wrongful act and thereby forfetng t.2ybut notwthstandw "consensual" nature of such an acton, t s the wrongfujness of the rght- [ holder's act and not consent that justfes the coxon that an nalenable rght has been When a person has forfeted a rght, others are permtted to treat 1 hm n a way that would otherwse be napproprate smply because of 1 hs wrong actons. But when a rght has been waved, othcrs are, permtted to behave n an otherwse unacceptable manner smply A because of the consent of the orgnal possessor.28 1 2. Four Reasons for nalenablty. There are several reasons why consent 0 mght -- be nsuffcent to extngush or transfer certan rghts. Frst, th-re of ndvdual rghts mght rulc out the alenaton of certan of these rghts. t s usually manzlned than an mportant part of what havng,a rght entals s that others have a duty to refran from volatng that rght. But f a person must respect the rghts of others, then that person may not be able to alenate the rghts he possesses that provde the means by whch he s able to respect the rghts of others. - To llustrate ths, suppose A consents to an arrangement under whch he wll always unquestonngly follow the commands of B. f such a consensual arrangement were legally and morally bndng, then A would volate B's rghts by refusng to do what B commands; A would be wrong to so refuse. Suppose, now, that B orders A to volate the rghts of C. f such a commtment was consdered to be a bndng transfer of rghts, two mportant moral consequences result. _? Frst, A no longer has the rght to act on hs own assessment of the \rghtfulness of a gven command. n other words, A no longer has the moral means to respect the rghts of C.29 f the transfer from A to B s vald, then A 25 Terrance McConnell, "The Nature and Bass of nalenable Rghts," Law and Plrlosophy, vol. 3 (1984), p. 43 (emphass n B?ghd+ 26 bd., p. 28. See also Joel Fenberg, Rghts, Ju&and the Bounds oflbeq (Prnceton, NJ: Prnceton Unv. Press, 1980)' pp. 240-2421 and Dane T. Meyers, nalenable Rghts: A Defense (New York: Columba Unv. Press, 1985), pp. 13-15. 9 27SeeMeyus,nalmableRghts,p.14. McConnell, "The Nature and Bass," p. 28 (emphass n orgnal). 29 See Arthur Kuflk, "The nalenablty of Autonomy," Phlosoplzy and PublcAffan, vol. 13 (1984), p. 286 (f the orgnal agreement "s vald, then the autonomy-abdcatng agent has no ht to object, let alone to refuse.") LLf- h~w< \. 1 CONTRACT REMEDES AND NALENABLE RGHTS 187 cannot be lable for the volaton of Cs rghts. f lablty exsts, t must be lmted to B.30 Second, there s now a conflct of rghts. A would be actng wrongfully f he respected Cs rghts (thereby volatng B's rghts) and would also be actng wrongfully f he faled to respect Cs rghts. The valdty of the frst consequence s undermned by the moral prncple that "ought mples can." f a person has a duty to respect the rghts of another, then a person also has a rght to do so. As long as thc duty exsts, the rght must also exst, so the rght to so act may not be transferred to another by consent. There would appear to be somethng morally defectve about a theory that faled to hold a competent person responsble for hs actons smply because that'person had consented to shft responsblty to another." The valdty of the second consequence s undermned by the "compossblty" requrement of a coherent theory of rghts. That s, for logcal and functonal reasons, a system of rghts may not recognze two conflctng rghts as vald,32 One of the alleged rghts here cannot be vald, and the conflct may be resolved n one of two ways. Frst, we could conclude that bccause the orgnal arrangement s bndng, ether C really had no enforceable rght aganst A n the frst place, or C lost hs rght upon the makng of the contract between A and B. Second, we could conclude that the orgnal agrccmcrt between A and B cannot be bndng - that s, some of A's rghts are nalenable - because such a rghts transfer would conflct wth the vald rghts of C. Any rghts theory that supported the rghts clam of C (as most theores would) would have to deny the valdty of the contract between A and B. Any rghts theory that resolves the conflct n ths way must also concluae that persons cannot alenate the rght to control all of ther future actons.33 No 30 thank George Smth for frst suggestng to me ths analyss and example. 3' Cf'. Jean-Jacques Rousseau, The Socal Contract anddolmer, trans. G. D. H. Cole (New Xork: J. M. Dent & Sons Ltd., 1973), p. 170: To renounce lberty s to renounce beng a man, to surrender the rghts of humanty and even ts dutes.... Such a renuncaton s ncompatble wth man's nature; to remove all lberty from hs wll s to remove all moralty from hs acts. " See Robert Nozck, Anarchy, Statr and Utopa (New York: Basc Books, 1974), p. 199 ("ndvdual rghts=o-possble; each person may exercse hs rghts as he chooses."); Hllel Stener, "The Structure of a Set of Compossble Rghts,"Journal ofphlosophy, vol. 74 (1977)) d --, pp. 767-775 (argung that compossblty s a logcal requrement of a system of rghts); Barnett, "Pursung Justce," p. 58 (addng functonal concerns to Stener's logcal analyss). / 33 t mght be argued that the analyss n the text does not descrbe nalenable rghts - that ' s, rghts a person has that cannot be transferred to another by consent - but, nstead, descrbes actons that A may not perform because nether A nor hs master B has the rght to so act n the " frst place. n other words, A need not volate C's rghts because nethera nor R have the rght to volate the rghts of another. Ths s true, but to recast the example n ths way s to omt the 1 ssue unavodably rased by the hypothetcal agreement: s A's rght to control hs own person
RANDY E. BARNETT r matter what A and B have agreed to, A must retan the ght to respect the rghts of C. A- The frst reason for nalenablty shows that the clamed dstnctbn,between alenable and nalenable rghts s a plausble one. However, any agreement to obey the lawful (or of another would survve the analyss thus far why some rghts mght be nalenable would the conlmtments that certan rghts transfers ental. Ths second reason for nalenablty would have far more_~nh.gconsequences than the frst. f rghts,are enfgceable clams to control resources n the world and contracts are enforceable transfers of these rghts, t s reasonable to conclude that A rght to control a resource cannot be transferred where the control of the resource tself cannot n fact be transferred. Suppose that A \ consented to transfer partal or complete control of hs body to 3. Absent J'Y some physologcal change n A (caused, perhaps, by voluntarly and know-, 1. ngly ngestng some specal drug or undergong psychosurgery") there s no \ way for such a commtment to be carred out., True, A could conform hs conduct to the orders of B, but he would stll u \+ possess control over hs actons and would have to wllfully act so as to conform to B's order. Because A could not n fact transfer the control of hs body to B, B would n fact be forced to rely on A's actual control of hs body to carry out B's orders, notwthstandng A's agreement.35 B's "control" ofa's body would, then, be metaphorcal rather than actual. The argument here s, not that force s "neffectve" n gettng slaves or servants to obey the orders rj: of ther masters but, rather, that force would be unnecessary f the actual control of servants' bodes could be transferred to the masters.36 "A ' \% b f P + / Arthur Kuflk offers these examples to undercut ths type of argument for nalenablty; "The nalenablty of Autonomy," p. 281 ("Ths suggests that the mproprety of an autonomyabdcatng agreement has more to do wth the mproprety of autonomy-abdcaton tself than wth some general fact that we have no rght to make commtments we know we wll be unable to keep."). But arguments based on mproprety and one based on the mpossblty of such agreements are not mutually exclusve. Kuflk's examples only show that ths reason for nalenably s lmted to those commtments to alenate the future control over one's person whch are not made possble by mnd-alterng drugs, branwashng technques, or psychosurgery. Smlarly, a promse-to undergo a dependency-nducng procedure would be an unenforceable attempt to transfer an nalenable rght: the rght to control whether or not to submt to the operaton. But thrd partes mght have no rght to forcbly nterfere wth someone who voluntarl undergoes such a procedure. (The clam, for example, that members of relgous cu ts may rghtfully be kdnapped and "deprogramed" s properly controversal.) A person who voluntarly submtted to such a procedure (assumng that such a procedure actually worked) mght be commttng a nonfatal knd of "sucde" (zombcde?) and the "master" or guardan would then become legally responsble for hs ward. 36 t may be revealng that the law governng employment relatons used to be called the law of "master-servant." Ths dstncton between alenable and nalenable, transferable am&mn=, (; v, transferable rghts corresponds to the dstncton recognzed n<cvll law), (,. - countres between contracts "to gve" and contracts "to do."" ~ h e x r transfer a rght to control external resources. The latter call for some future. act nvolvng the use of one's person. Surely, the former knd of transfer s possble. What s my house or car could equally well be your house and car. But bodes are dfferent from other knds of thngs. What s my body cannot n any lteral sense be made your body. ~ecaue there s no obstacle to transferrng control of a house or car (of the sort that s unavodably presented when one attempts to transfer control over one's body), there s no obstacle to transferrng the rght to control a house or car.38 Rut f control cannot be transferred, then t s hard to see how a rght to control can be Suppose, now, that thc agreement between A and R were recast to read that A transfers to B "the rght to use force agansta to compel A to conform hs conduct to B's commands." t would appear that snce force can be used by another, the rght to use force can be transferred to another and ths agreement s not barred by reason of mpnss$lty (though t mght be subject to other dffcultes). Upon closer nspecton, however, such an " See Barry Ncholas, Fret~clz Lam of Contract (London: Butterworth & Co., 1982), p. 149 (the French Code "adopts the tradtonal classfcaton nto (a) dorzner, (b) fare ou nepasfare. t s mportant to note that donner n the techncal legal sense means nether to make a gft nor to delver (lvrer), but to convey, to pass ownershp or some other real rght."); Guenter H. Tretel, "Remedes for Breach of Contract," Arthur von Mehren, ed., nternatonal Encj~clopeda of Comparatve Lam (Pars: J. C. B. Mohr, 1976), vol. 7, p. 13 (n French law, the "oblgaton to do or not to do s contrasted... wth the oblgaton de dontjer or to transfer property"). 38 Transferrng ownershp n anmals may be seen as presentng a specal dffculty. Cannot anmals refuse the orders of the new master? But the problem of control here s less than meets the eye. The second owner gets no more control and hence no more rghts than those held by the orgnal owner. Suppose the promsor attempted to transfer the rght to a horse that would cuddle up wth you n bed. Unless the frst owner actually possessed such a horse, the rght to lhs knd of horse could not pass. Whle the falure to tender ths knd of horse would not alone consttute a breach of contract, the possblty of an acton for fraud or breach of warranty remans. n contrast, the ssue of nalenable human rghts concerns the rghts an ndvdual retans despte the fact that consent to transfer these rghts may have been expressed. Therefore, the truly analogous problem wth anmals s whether or not sentent anmals themselves have rghts - nalenable or otherwse - n the frst place, an ssue that s well beyond the scope of ths essay. 39 t wll not do to argue that such a rght to control s transferable because a putatve master can obtan legal enforcement of the agreement. Such a clam would be a non sequfur n an enttlement theory. Accordng to enttlements theores, we do not have rghts because our clams are n fact enforced - the vew of legal postvsm - but, rather, our clams ought to be -servces).
190 RANDY E. BARNETT agreement does not escape the problem of attemptng to transfer a rght of control whch cannot n fact be transferred. f B has the rght to use force aganst A, then A may not rghtfully resst. But B has the rght to use force aganst A only f such force can be justfed. Such force may be justfed fa c n ~ e or d appeared to consent (and dd not change hs mnd) - for example, fa and B were prze fghter; or stunt men, or f/ was a masochst. The crucal queston, however, s not whcthcr A's consent to the use of force by B justfes B's actons, but whether A's C pror consent can lmt hs rght to wthhold consent n the future. sup=that, after promsng to perform servces and grantng to B the "rght" to use force to compel performance, A thnks better of t and revokes hs consent. When B (or a court) attempts to enforce B's command, may A rghtfully resst? The agreement that 3 may rghtfully use force aganst A entals thata no longer has a rght to resst B because ths rght has somehow been transferred to B (or lost).40 Yet A's agreement notwthstandng, A resst B. Just as A cannot alenate hs rght to the future control of hs person because hs ablty to control hs person cannot lterally be transferred, A cannot have transferred or lost hs rght to resst when he retans hs ablty to resst." Therefore, f A may rghtfully resst B, then B may not have the rght to use force aganst A, snce such a rght would also mpose on A a contradctory duty to refran from resstng. // Th e mplcatons of ths analyss may appear far-reachng." The legt- - macy - of all c o r n m t m b U When a promsor who has promsed to perform servces n the future refuses to perform, because no rght to performance has been transferred to the promsee by the promse, no rght of the promsee s volated by nonperformance. But, as wll be consdered below, the actual consequence 40 fa retans hs rght to resst B, the11~4 wll be actng both rghtfully and wrongfully should he resst B. Such a conflct of rghts s barred by the compossblty feature of an enttlements theory. See supra note 32 and accompanyng text. 41 True, as abave, A can voluntarly submt to procedures whch would elmnate hs ablty to resst (although t s very hard to magne the value t0.a master of a slave who had lost the power to physcally resst volence). The harder queston would then be, n the unlkely event that A's ablty to resst had been alenated, can others rghtfully go to A's defense? Ths ssue would perhaps be best governed by prncples of guardanshp. See Kuflk, "The nalenablty of Autonomy," p. 275 ("[TJo say that autonomy cannot be alenated s not to deny that one human beng can be legtmately subject to the guuanshp of another."); Barnett, "Pursung Justce," p. 69, note 17 (brefly dscussng the concept of guardanshp n a Lberty Approach). 4Z But the analyss just presented s not as far-reachng as some mght at frst magne. t nether stems from nor supports a vew that the only rghts we have are those whch we are able to assert - that "mght makes rght." The analyss of nalenablty n the text clams only t] descrbe a feature of those rghts whch we (arguably) have: some of these rghts may be alenated or transferred, others of them may not. What rghts we have and how we come to have them s another story requrng addtonal analyss. See Barnett, "Pursung Justce." thank Emlo Pacheco for brngng ths ssue to my attenton. ' CONTRACT REMEDES AND NALENABLE RG-TS 191 of such an analyss s only to lmt relef for nonperformance of personal servce commtments to money damages. 4 Suppose, now, that A attempts to transfer a rght to control pa.rts of hs body to B - such as hs blood or heart. Snce a transfer of actual control of these body parts s possble, the 'transfer of a rght to control s also possble. -m4 Accordngly, agreements to transfer second reason for nalenablty. for nalenable rghts. arse from dutes one has to respect the others; they may also arse from dutes be shown that one has a moral duty to Such a duty may mply that t would be wrong for others to nterfere wth such actons, whch would mean that we would have rghts to be free from such nterference." Would not such a clam also mply that some of these rghts may not be transferred to another by consent? For example, the rghts, we have to acqure and then use resources n the world are essental to a n out such dutes to oneself and for tyrrjason would be nalenable. A]' heref fore, an agreement to transfer rghts t 11 resent and future acqured L! - external possessons would be an unenforceable attempt to transfer an nalenable rght.+' Further, a person's consensual commtment to always obey all the commands of another (or all those commands whch are lawful) mght be unenforceable because t s the case that such a commtment s conducve to the pursut of a good lfe. Ths would be true f the good lfe s a "do-t-youself job";'5.e., even f one s dong "all the rght thngs," one's lfe s truly mpovershed f one s not freely choosng to do the rght thngs. f ths s true, one may never alenate the rght to make all choces about one's actons - that s, slavery - because dong so wll always be an nferor moral Accordng to ths analyss, whle one may freely and rghtfully contnue to obey the commands of another, what one never loses - no matter what one has consented to - s the rght to change one's mnd and begn pursung the truly moral course of self-drected acton. supp6se that a competent, adult 43 Henry B. Veatch offers an account of rghts based on self-regardng dutes n ru?ttatl.rghts: Fact or Fanq (Baton Rouge: Lousana State Unv. Press, 1985). 44 Such a prncple would provde a property rghts bass - for some lmted form of "bankruptcy" laws. See Lawrence H. Whte, "Bankruptcy as an Economc nterventon,"jo~rn~al of Lbertaran Studes, vol. 1 (1977), p. 287, note 27 ("Perhaps some dstncton among the debtor's assets n terms of alenablty can be made accordng to a standard of subsstence...."). 45 Veatch, Human Rghts, p. 114. -_5) 46 See John Stuart Mll, On Lberty (ndanapols: Lbra~ of Lberal Arts, 1956), p. 125 (,4 person, "by sellng hmself for a slave... defeats, n hs own case, the very purpose whch s the justfcaton of allowng hm to dspose of hmself.").
)k ot." / 192 RANDY E. BARNETT person commts herself to gvng her heart to a dearly loved one, an acton whch - unlke the gft of blood - wll nevtably result n her death, and that no fraud or duress s used to nduce ths consent. We mght conclude that whle the person has no duty to make such a gft - such an act would be termed supererogatory - and, ndeed, the gft mght be n conflct wth the duty that person owes to herself (of course, t also mght not), no other person would have the rght to nteravene and prevent such a sacrfce from beng made. Suppose, now, that after the commtment has been made, the person makng t changes her mnd and refuses to go through wth the transfer. Whle a person may be able to transfer control over a heart to another (and arguably may not be prevented from dong so), her never-endng duty to herself prevents her from transferrng a rght to her heart to another such that she must convey control of the heart even f she changes her mnd. The same reasonng apples wth equal force to attempts to alenate a rght to the future 'control of the rest of one's body, snce dong so s always nconsstent wth the duty that one owes to oneself. n fact, the most salent characterstc of nalenable rghts may be that, whle rghts-holders may exercse ther nalenable rghts for the beneft of others, a rghts-holder may never surrender the rght to change her mnd about whether to exercse such rghts or h 1 Anthony Kronman has argued that legal prohbtons of slavery are "pater- nalst."'~ut whle an argument for nalenable rghts mght be paternalst, s need not be so. Surely the account just provded s not ~aternalst.~~ No accepted and permssble). 49 An argument for nalenable rghts s not paternalst smply because advocates of such rghts argue that restrctons on (everyone's) optons are, on balance, best (for everyone). Frst, such a unversal argument for nalenable rghts denes everyone the same opton and therefore does not put advocates nto any type of parental stance towards others. Second, all rghts - not just nalenable ones - can be advocated on the grounds that ndvduals be permtted the lberty that rghts provde because such lberty s "good" for them. See Barnett, "Pursung Justce," pp. 50-72. And any cornpossble system of rghts restrcts somebody's optons - one may not act so as to volate the rghts of another. f t s not paternalst to advocate these restrants on the ground that they are good or necessary for rghts-holders and nonrghtsholders alke, then t s not paternalstc to argue n the same manner for restrctons on the alenablty of certan of these rghts. CONTRACT REMEDES AND NALENABLE RGHTS 193 one may rghtfully nterfere n the consensual sacrfcal conduct of a ( competent adult - as a parent may nterfere wth a chld - smply because the ntermeddler knows what s truly best for the ndvdual makng the sacrfce. Rather, ths argument aganst the enforceablty of agreements to transfer control over one's body s that the law should not specfcally enforce certan commtments when the party who made the orgnal commtment 1 thnks better of t.'" An nalenable rght does not gve others the rght to thnk for a competent adult. Such rghts smply defne a category of decsons about whch cornpetent adults may rghtfully overrde ther om prevously expressed prefer- 1 ences. Where ex ante consent and expost consent are the same, there would be no breach of contract. Restrctons on alenablty, then, are really rules concernng whch of two nconsstent expressons of assent by the same party 1 determnes the rghts of both partes to an agreement: Wth alenable rghts, ex ante consent transfers rghts to control resources and bnds the transferor ex post. Wth nalenable rghts, a rght to control resources s never trans- 7 ferred by consent, so ex post consent takes precedence over ex ante consent. 7 A fourth reason why some rghts may be nalenable stems from a general skeptcsm that agreements to transfer rghts amountng to the control of one's destny would ever (or very often) be obtaned n the absence of ncompetence, fraud, duress, mstake, or some other recognzed contract defense. Assumng that t was theoretcally possble to alenate every rght (ncludng a rght to the future control of one's person), the falure of any legal system to accurately decde every case, coupled wth the extremely hgh cost of error n evaluatng the procedural valdty of certan rghts-transfer agreements, argues for a blanket prohbton on the transfer of certan knds of rghts?! For example, the hgh cost of erroneously decdng that a slavery dqh- ( contract was truly voluntary could be sad to mltate aganst mer permttng 0 the enforcement of such an agreement. The argument that epstemologcal uncertanty and the cost of epsternc ":J w errors mght convert rghts that are n pont of moral prncple alenable nto PUk" n 1 " n assessng a dfferent argument for nalenablty than that presented here, Calabres and j Melamed, "Property Rules," p. 1113, make a smlar observaton: Ths type of lmtaton s not n any real sense paternalsm.... t merely allows the [ ndvdual to choose what s best n the long run rather than n the short run, even though that choce entals gvng up some short run freedom of choce. " See Kronman, "Paternalsm," p. 768 ("[lf fraud s wdespread, f t can be concealed wth suffcent ease, and f the vctms of the fraud typcally lack the resources to prosecute ther legal c!ams, lowerng the proof requrement may not be enough. A more radcal soluton... s to gve the vctms an nalenable enttlement they cannot wave and therefore cannot be fraudulently nduced to abandon."); McConneU, "The Nature and Bass," pp. 53-54 ("[TJhe polcy n queston s one that could easly be abused, thereby resultng n harm to nonconsentng partes."). k 4
RANDY E. BARNETT CONTRACT REMEDES AND NALENABLE RGHTS 195 rghts that are legally nalenable s an example of ndrect consequen be barred n prncple by the lteral mpossblty of transferrng control over 7 tal~m.~' Such system concerns can prove to be qute compellng n any one's person. serous effort to formulate a legal system that s truly just n ts actual Thus, we may conclude that (a) rghts to pera at on.^^ 7 resources external to one's person are (generally) alenable, and (b) the rght - to possess, use, and control one's person s nalenable. 3. What Rghts Are nalenable? We cannot conclude on the bass of the four reasons presented here for nalenable rghts that all our rghts are nalen- able. Far from t. The transfer of rghts to control external resources s both possble and normally compatble wth the dutes we owe ourselves and / V. REFORMNG THE RULES GOVERNNG CONTRACT REMEDES 1 ' & J ~,jbg C Q &d -\ o others.54 Nor could t be farly cost of erroneous adjudcaton : A consent theory of contract Grrnts us to dsgngush between de subje~t of clams to external the benefts of permttng of a contract - that s, the partcular rghts beng transferred from one party alenaton. Except n crcumstance^,^^ rghts to to the other - and the object of a contract - that s, what the partes are tryng external resources are not nalenable.56 ' to accomplsh by enterng nto a contractual arrangement. Only alenable On the other, rsks so great that n every case they are beemed to outwegh whatever benefts mght accrue from enforcement. Further, the transfer of complete or partal rghts of control mght nevtab1y;conflct wth d ' owes to oneself. Moreover, the transfer of even lmted rghts G t r o l may 52 See Larry Alexander, "Pursung the Good - ndrectly," Ethcs, "01. 95 (1985), pp. 1 315-332; John Gray, "ndrect Utlty and Fundamental Rghts," Socal Plzlosophy SPoly, vol. 1 (Sprng 1984), pp. 73-91. 53 Rchard Epsten has stressed the mportance of epstemc problems of admn~straton for 4- the formulaton of common law rules. See, e.g., Rchard Epsten, "Unconsconablty," pp. 30Cb303; "The Socal Consequences of Common Law Rules," Haruard Law Revew, vol. 95 (1382), pp. 1748-1749. See also Sher, "Rghts Volatons." 54 For example, we transfer rghts to some thngs n exchange for rghts to other thngs we value more hghly; and we make gfts because the good lfe entals actng chartably towards others. See Rchard A. Epsten, "Why Restran Alenaton," Columba Law Revew, vol. 85 (1985), pp. 971-972 (dscussng reasons why alenaton s permtted). r,! 55 As was suggested above (supra note 44 and accompanyng text) attempts to alenate rghts to such a quantty of external resources that there would not.. be enough left for the transferor to survve are not enforceable. n other w o r d s. m u n quantty, nor&lly alenable rgh-sources becorne-nalenable. \, 56 Other reasons for nalenablty of otherwse alenable external property have been sug- gested, but space constrants prevent me from consderng them here. See, e.g., Susan Rose-, Ackerman, "nalenablty and the Theory of Property Rghts," Columba Law Revew, vol. 85 (1985), pp. 931-969; Epsten, "Why Restran Alenaton," pp. 973-990. b / rghts may be the subject of an enforceable rghts-transfer agreement. Obstacles n the path of a presumpton favorng specfc performance of all!: contracts may be obvated by dstngushng three knds of contracts: contracts for external resources, contracts for personal servces, and contracts for corporate servce^.^' n ths secton, the problems tradtonally assocated wth specfcally / enforcng contracts for personal servces wll be shown to stem from the fact that nalenable rghts may mproperly be construed as the subject, rather than the abject, of such contracts. n contrast, the specfc performance of ( contracts for corporate servces gves rse to no such problem. 1. Contracts for Externad Resources. The frst knd of contract nvolves consent to transfer alenable rghts to possess, control, and use dentfable external resources, whether land or goods. Because rghts to external -6urces a-mptvely alenable, such rghts may be made the subject of an enforceable rgkts transfer. fa contracts to "sell" a pece of land or some good lke a car to B, most people would expect that when the contract s executed B has a rght to the specfed land or car. Therefore, when ths s the normal exppctaton and ntenton, the normal or presumptve remedy for breach of contract n such a case should be that B's newly acqured rghts to the land or car are respected '' Ths essay does not exhaust the subject of nalenable rghts, nor that of the proper choce of contract remedes. Contracts to provde employment, for example, do not easly ft nto any of the three categores of contracts dscussed n ths paper. Determnng whether such a contract may permssbly be specfcally enforced mght turn out to requre a more extended dscusson of nalenable rghts.
RANDY E. BARNETT - he gets the land or car f he stll desres to receve tass f not, he may elect to receve money damages.59 Why not, as n both.f German law, gve specfc per- j formance as to any p h y z t that can b; found and s reach-. j able by drect executon? t s true that wherever speed s a factor and markets reasonably organzed, promsees wll not often ask for. - t, as has proved true n Germany (and thnk also n France). But why not leave ths to the promsee's choce?60 Of course, A and B need not agree to transfer the rght to the land or car e 19 tself. They mght nstead nclude an express provson n ther orgnal contract that would rebut the normal meanng of such contracts and lmt recovery for breach to money damages. The object of such a contract mght be to secure performance, but ts subject would be a gondtnnal&msf~r nf a for nonperformance. A consent theory of contract says that such an agreement would ordnarly be enforced." 4;. ' S8 Ths category corresponds to the category of contracts to gve (donner) n French law; see speurformance as a matter of rght. See B. Ncholas, Frctlch Lam, p. 211; Tretel, "Remedes," p. 13. \ 59 t s arguable that, n some cases, sellers mght be permtted to show why buyers should not get the thng contracted for. For example, f a fungble replacement good s easly avalable to the buyer on the market, but performance would be an extreme hardshp on the seller, then where the contract s slent on the form of relef, the seller mght be lable only for money damages. Where these crcumstances can be shown to exst, and n the absence of an express clause, t may no longer be safe to presume that sellers would have consented to specfc relef. n contrast wth the tradtonal rule, however, the burden of proof s placed on the ampate CONTRACT REMEDES AND NALENABLE RGHTS 197 2. Contracts for Personal Servces. What should happen f A breaches a commtment to provde personal servces by refusng to perform as agreed? Can a commtment by A to 3 thata wll do somethng for B consttute a vald contract? f the rght to the future control of one's person s nalenable, the personal servces n queston cannot be the subject of a vald rghts transfer agreement. Therefore, f a promse to provde personal servces s only a commtment to exercse nalenable rghts, then t s unenforceable. By breachng hs promse to B, A may commt a morally bad act. He has not, however, commtted a legally cognzable wrong. Alternatvely, a contract "to provde personal servces" mat accurately be construd a cnmm.~tmpn+ to transfer alenable rghts to money damages (or other alenable resources) on the condton that specfed personal servces are not performed as promsed. Such an agreement would not purport to transfer the nalenable rght to the servce;thernselves. Rather, such an agreement would (condtonally) transfer alenable rghts to the money and would be enforceable n the event that the condton was satsfed - that s, n the event that servces were not performed as ameed. n v essence, the true commtment n an enforceable agreement to provde you wll have the rght to money Whlc the object or purpose of such a contract for personal servces would be to assure that one party wll exercse hs nalenable rghts n a certan way some tme n the future, the actual subject of such a contract would be the transfer of alenable rghts to the money. supra note 37 and accompanyng text. Consstent wth the analyss n the text, French law grants personal servces would be: "1'11 do X for you and, f fal to perform X, Every oblgaton to do or not to do (defare ou de nepmfre) party - the pa1.v n breach. But see Schwartz, "The Case for Specfc P~rformance," p. 289, note 52 (argung aganst the recognton of such a defense on the grounds that t s unnecessary d tself nto damages n the case of non-pcrformance by the debtor.b3 n practce, costly to admnster, and unpredctable n applcaton). Nonetheless, Schwartz does favor a very lmted defense to specfc performance based on admnstratve dffculty: fa consents to a legally bndng commtment to personally pant B's "Although such cases are rare, courts should have the power to deny specfc performance where necessary." bd., p. 305., pcture, thcn no matter what the contract specfes, B's only rght s to money 60 John Dawson, "Specfc Performance n France and Germany," Mchgan Lam Revem, vol. 57 (1959), p. 532. The common law apparently once granted a comparable rght of replevn to buyers of goods, but ths rght was conceved of as arsng from rq law, not contract law; " Justce 0. W. Holmes, Jr., suggested ths approach as a general rule of contract remedes see Fredrch Kessler and Grant Glmore, Contracts: Cases and s, 2d ed. (Boston, MA: n The Comnlon Lam (Boston: Lttle, Brown & Co., 1881), p. 301: - Lttle, Brown & Co., 1970), p.- 1000 (descrbng ths "twn set of remedes" as "one of the t The only unversal consequence of a legally bndng promse s, that curostes of sales law as t developed n the nneteenth century"). promsor pay damages f the promsed event does not come to pass. \ 61 Whle courts are generally wllng to enforce lmtaton of damages provsons, at present - they do not generally recognze the partes' rght to expressly agree to a specfc performance Whle ths passage s both famous and often crtczed, t has been noted that Holmes dd not remedy n ther contract. See an R. Macnel, "Power of Contract and Agreed Remedes," r assert that money damages were the exclusve form relef for all breaches, only that t was the Cornell Law Quarterly, vol 47 (1962), pp. 495-528 (descrbng the varous lmtatons on the only remedy that was always or enerallv avalable. See Mark DeWolfe Howe, Justce Olver ' enforcement of agreed remedes); Anthony Kronman, "Specfc Performance," pp. 369-376 WendeNHolnzes: The Prmng YeanqCambrdge, MA: Harvard Unv. Press, 1963), pp. 233-237. (descrbng present law and favorng the enforcement of such clauses). Perhaps courts would be 63 French Cvl Code, art. 1142 as t appears n Ncholas, Frencl~ Lam, p. 210. Of course, any more respectful of such clauses, f t became clearer why a specfc performance clause n a such award would be lmted by the quanttatve constrants placed on the alenaton of external contract for personal servces would not be enforceable. resources dscussed supra note 44. c--
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