Re: Responses to "Spam costs and questions" (long)

[dlv@bwalk.dm.com (Dr.Dimitri Vulis KOTM)]

Paul Bradley <paul@fatmans.demon.co.uk> writes:

> > The prospectus is a legal document -- part of the contract between the
> > mutual fund and the customer.
> >
> > So, the question is, should there be any legal constraints on the
> > "speech" in contracts?
>
> Of course, a contract is a binding document, that does not imply that
> there should be any legal constraint on the speech within that contract.
> If I sign a contract which says that I must kill myself on demand, and
> the penalty for breach of contract in this case is a fine of say $5000, I
> am certainly stupid if I sign such a contract, assuming that is that I am
> logical and not suicidal, I must later decide if I value my life at over
> $5000, I assure you, this is not a difficult question to answer ;-).

I don't know how they phrase it in the UK, but in the US such a contract
would violate "public policy" and is therefore unenforceable.

> The point is that breach of contract shouldn`t be a criminal offence, it
> is a civil offence, and the penalties for breach of contract should be
> agreed during negotiation of that contract. Therefore, I must evaluate
> for myself if I consider the contract to be reasonable and if I consider
> the penalties for breach of that contract too great to risk incurring
> such penaties. There is no reason to suggest that contractural speech is
> protected in this fashion, as it is an agreement and not pure speech.
>
> >Can I sign a contract, and later be able to
> > say "Oh, *that* clause!  That was just a *joke*"?
>
> This is a straw man, there is no way you can equate contractural speech
> and other forms of speech, one takes the form of an agreement, the civil
> crime commited on breach of contract is not a form of speech, it is an
> overt act which breaks that contract.

That's a very good point.  If I commit assault/battery on Kent, the
gubmint supposedly has jurisdiction because I've violated "king's peace".

If I advertise that "borshch cures cancer" and Kent buys some borshch
from me, and dies from cancer anyway, then what's the basis for the
gubmint's involvement?

---

<a href="mailto:dlv@bwalk.dm.com">Dr.Dimitri Vulis KOTM</a>
Brighton Beach Boardwalk BBS, Forest Hills, N.Y.: +1-718-261-2013, 14.4Kbps