KOL418 | Corporations, Limited Liability, and the Title Transfer Theory of Contract, with Jeff Barr: Part II

Kinsella On Liberty

Kinsella on Liberty Podcast: Episode 418. This is a followup to KOL414 | Corporations, Limited Liability, and the Title Transfer Theory of Contract, with Jeff Barr: Part I. See that episode for more information and notes. In Part III, we need to talk about corporations. For more on that, see Corporate Personhood, Limited Liability, and Double Taxation. https://youtu.be/5-Zvt59UlSk *** Followup exchange: On Tue, Aug 20, 2024 at 11:31 AM <> wrote: Stephan thanks for replying to my questions in the comments section of KOL418. I am not a lawyer or legal academic, my educational background is in Math and Computer Science, and my current specialty is cyber security for critical infrastructure, so I apologize in advance if I’m not as precise in my language as you are used to - any coaching on that is much appreciated. I have been fascinated with TTTC since hearing about it years ago and love the idea of taking an existing practice (contracts) that doesn’t follow from first principles and reframing in a different way that allows for the same or similar outcomes but in a first principles respecting way. In computer science this concept is similar to a concept called code refactoring, in case you find that interesting. If would definitely like to take you up on your zoom offer, but if you’re alright with it I would like to clarify my thoughts with a few questions and likely follow up’s. After reading your replies and rereading my original question, I’ll try and reformulate and clarify. The background context is that this transfer of title is happening just as Robinson Cruso is meeting enough people that there is now the concept of private property. Since this is new contact with other people, there are no social norms or background culture that that could add implied (suppletive I think you called them) conditions. I am not sure I am explaining properly, but I am trying to get to the point where only explicit conditions exist. ​I think there will always be some background assumptions, no matter how sparse. The reason is that no agreement or contract can ever be complete, except perhaps for very simple ones--say, contemporary exchanges (no future element) with no warranties at all, i.e., "as is". If there is any future element or condition then something not anticipated might happen even if you have a 100 page contract. In this case you must either implicitly or explicitly resort to some dispute resolution process and some arbiter who has to decide be resort to some external principles, including custom, common sense, evidence, and so on. Any contract has some communicative element, this is how we distinguish consent from aggression. This means some form of langauge, and language is always imprecise. It is always contextual, in a context.To the extent Crusoe is in "society" with others, this implies the possibilty of some form of communication--if only simple forms like "yes" or "no," "you may have this," "you may use this," "you may not touch me," and so on--even if by a gesture. I.e., in my view it's impossible to imagine "only explicit conditions" exist for the same reason that it's it's impossible to have a complete contract. BTW what I call suppletive, may be more of a civil law term; I've heard the term "gap fillers" too. This includes resort to notions of good faith and so on. Or instead of a gap filler-- you could simply say "We agree to XYZ, and if anything else comes up that we have not explicitly contemplated, or that we disagree on, then we simply agree to let third party T decide and we will go with whatever he says." But even this is a type of gap filler and has to be at least implicitly contemplated. In this context does fraud exists or does fraud only exist when there is an implied conditional title transfer with the condition that fraud is now allowed? I think there is not fraud in this case, but wanted to clarify. If there is fraud in this case can you point me to ...