From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: Pre-Sex Contracts
Keywords: Sex, Agreement, Legal, Contract
Organization: Who, me???
Date: Mon, 14 Dec 1992 17:46:28 GMT

In article <19461@smoke.brl.mil> matt@smoke.brl.mil (Matthew Rosenblatt) writes:
>In article <1992Dec11.021752.25930@cfctech.cfc.com> kevin@cfctech.cfc.com 
>(Kevin Darcy) writes:
>
>>In article <1992Dec10.142620.11295@midway.uchicago.edu> 
>>thf2@midway.uchicago.edu writes:
>
>>>As are all contracts where two parties contract to take rights from a third
>>>party.   [Ted Frank]
>
>>Agreed. That's why the kind of contract I proposed would obligate the woman
>>to REIMBURSE the man for his statutory obligations. It would not affect the
>>_amount_ of support going to the child, and therefore wouldn't take away any 
>>third party's rights.
>
>>Still unenforceable, Ted? Why?   [Kevin Darcy]
>
>Because Contract Law is not the be-all and the end-all of law.  

I never said it was. However, in the specific case of trying to determine 
whether a given contract is enforceable or not, isn't Contract Law pretty
much the be-all and end-all?

>In this
>case, the purported contract conflicts with Status-based Law, which is
>just as good law as it ever was.  The outcome dictated by Status Law
>is that support for a child will come from his biological father.  The
>desired outcome of the purported contract is that the biological father
>will be "held harmless" (by the mother) so that in effect, none of his
>money goes to support his child.  

Actually, the terms of the contract I was proposing didn't attempt to
"hold harmless" the man -- it proposed a reimbursement plan that would be
parallel to, but not replace, the statutory "status" obligations, and, 
according to the rules governing such contractual obligations, would be 
swept aside in the case of the woman's insolvency.

>Status Law in this case operates for
>the benefit of a party (the child) who is incapable of protecting his own
>interests through Contract Law, and so Status Law not only takes precedence,
>it *deserves* to take precedence.

Under the terms of the contract I was proposing, the child would enjoy the
same "status" rights as under the current law.

>When I've brought up obligations based on Status Law in previous postings,
>Mr. Darcy's best response has been that Status Law is a relic of the Middle
>Ages (as if laws against theft and murder weren't also relics of the same
>Middle Ages), and therefore Status Law does not deserve respect when it
>conflicts with Contract Law.  

Actually, my overall response has been "status law? so what?". Saying that 
something has its roots in "status law" is neither a recommendation nor a
condemnation, in and of itself; it's just legal-history trivia. Theft and 
murder have economic-efficiency justifications, paternity child support, IMO, 
does not have any such valid justifications. Therefore, if your ONLY defense 
of paternity child support laws is that they have a history in "status law",
then I'll simply pass your "defense" off as a quaint anachronism.

Besides, as explained above, I don't think there is any "conflict" [sic]
between Contract Law and the paternity child support statutes here.

And, in any case, I have yet to see any solid evidence that illegitimate 
children of old enjoyed the same "status" rights as modern illegitimate
children. The evidence I've seen strongly suggests that illegitimate
children were outcast, dispossessed, disinherited, although there seem to
have been scattered attempts to ameliorate their suffering and death via
"Bastardy Writs" or whatever. It is far from clear to me that the "status"
distinction you are arguing for was ever really entrenched.

>In other words, Mr. Darcy *does not like* Status Law.  Too bad.

Yeah, well, you may yet live to hear those words "too bad" echoed back at
you when your beloved, sparkling "status distinction" gets dumped on the
ash heap of legal history, Rosenblatt. Enjoy your crypto-conservatism
while you still can. There's no guarantee it'll last.

								- Kevin

Xref: sparky misc.legal:21364 misc.legal.computing:2384