Tuesday, April 3, 2012

Obscene Contracts

Armin Meiwes, Der Metzgermeister, wrote a very simple contract in March of 2001 (links omitted for the sake of civility {and I encourage you to refrain from seeking out any details on your own}). The offer was simple: he was "looking for a well-built 18- to 30-year-old to be slaughtered and then consumed." Now, since this contract was offered in Germany, I can't comment on the specifics of Teutonic Law as it relates to how the local court might have upheld the terms, but the main components of a valid contract seem to (arguably, of course) be present: offer and acceptance (by Herr Bernd J├╝rgen Brandes), consideration (this may be the crux of the argumentablity) and sufficiency. There appeared to be no coercion, and for the purposes of a thought experiment, we might assume that the contract included a cool-down period featured in many other life-or-death contracts, such as a euthanasia agreement. Naturally, we might ask if the respondent was indeed mentally impaired or otherwise incapable of forming a contract, but again, let's assume for the moment that this is not the case. In Anglo-American common law, this contract violates what is known as "unconscionability", a term of art that is as it sounds: the contract is so hideous that no court would consider enforcing it.

It is on these shifting shoals that we pilot the SS Euvoluntary Exchange. It seems reasonable that even if we grant all the other conditions on EE that we might still legitimately seek to bar parties from writing contracts over voluntary murder and cannibalism. We can assume that parties have rights over ownership and exchange, no appreciable probability of ex post regret, there exist no uncompensated externalities and no coercion by agency or circumstance exists and we still would find this kind of contract unacceptable. The curious question I have is what role money? Suppose that instead of Brandes offering his participation for non-pecuniary consideration that the offer included a cash transfer. I propose that if the ad had included the line 200,000DM embedded somewhere, the moral revulsion would increase exponentially.

Now, clearly the case of Meiwes and Brandes is a rather extreme example, but I suspect that similar moral sentiments linger as we relax the monstrosity of the contract. A contract to indulge a street fight between homeless people might be objectionable, but once you offer them $20 to bloody each others' noses, it seems downright criminal. An exchange of explicit cash consideration amplifies extant revulsion. Volunteering to protect a physically weaker friend from attack by bullies is gracious and noble; selling such services as a hired bodyguard is mercenary and ignoble.

At any rate, I think it's quite interesting that this whole "conscionability" concept exists. It seems to imply that even if every other legitimate condition for trade can be met, there remain some things that are just (to misquote Andreoni) some things that are just so icky that it's not in the interests of society to permit enforcement. Perhaps a seventh condition for EE would be something like: (7) trade is not unconscionable under the common law definition.

But seriously, don't look up the details of the Meiwes case. It's pretty gross, people.

2 comments:

  1. There has to be an agreeable definition for "too crazy to make enforceable decisions" and this satisfies.

    I always rationalized the concept of unconscionability in court by saying "this agreement is so unconscionable no one would have ever agreed to it, therefore although we do not know what went wrong, perhaps one party did not understand what they were agreeing to, it is safe to say something went wrong and there was no actual meeting of the minds in this case."

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    1. Agreed. Clearly, in the case of a murder-cannibalism contract, the presumption of sanity is, well, let's be generous and call it tenuous. However, there is legitimate and widespread disagreement over the unconscionability of, say, euthanasia contracts. Because the morality of some classes of contracts are conditional on social mores, the amount of tacit knowledge in society and the particular vagaries of space and time, we should expect to see plenty of challenges to case law. For the purposes of EE, we might want to be careful about what our moral intuitions say about the role of cash vs. in-kind consideration however.

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Do you have suggestions on where we could find more examples of this phenomenon?