[PASSED] Freedom to Contract

[Sanctaria]

This sounds reasonable so I made the change. I also cut-off the tail end of provision 2, since provision 3 makes exactly the same point.

If Quelesh supports it, I'm voting against it.

Oh for goodness sake, I'm no fan of Queleshian Ambassador either, but there's no need to be that petty.

[Wisconsin9]

If Quelesh supports it, I'm voting against it.

Oh for goodness sake, I'm no fan of Queleshian Ambassador either, but there's no need to be that petty.

That petty I shall be.

To be honest, I just don't like the proposal.

[Free South Califas]

This sounds reasonable so I made the change. I also cut-off the tail end of provision 2, since provision 3 makes exactly the same point.

If Quelesh supports it, I'm voting against it.

And do you intend to sacrifice all principles on the altar of your personal vendetta, or should we consider you to be participating in WA legislation with some minuscule measure of good faith?

[Quelesh]

*snip

This sounds reasonable so I made the change. I also cut-off the tail end of provision 2, since provision 3 makes exactly the same point.

The new clause 2 is highly satisfactory.

Alexandria Yadoru
Quelesian WA ambassador

[Wisconsin9]

If Quelesh supports it, I'm voting against it.

And do you intend to sacrifice all principles on the altar of your personal vendetta, or should we consider you to be participating in WA legislation with some minuscule measure of good faith?

Like I said in my previous post, I also just don't like this proposal.

[Cowardly Pacifists]

Like I said in my previous post, I also just don't like this proposal.

Great. One less ambassador to try to appease.

I thought the proposal needed an additional international dimension, so I borrowed a play from CD's upcoming proposal and included a new provision 5 in the current draft. Thoughts?

[Wisconsin9]

Like I said in my previous post, I also just don't like this proposal.

Great. One less ambassador to try to appease.

I thought the proposal needed an additional international dimension, so I borrowed a play from CD's upcoming proposal and included a new provision 5 in the current draft. Thoughts?

*sigh* If you allowed nations to flat out ban contracts, I'd approve… wait, why is this necessary at all?

[Cowardly Pacifists]

*sigh* If you allowed nations to flat out ban contracts, I'd approve… wait, why is this necessary at all?

Because it is the opinion of my delegation - and I hope others as well - that the right of an individual to utilize their own judgement in determining how, when, and where to pledge themselves to their fellows is an important aspect of our liberty.

And some nations... cough cough... wish to restrict that liberty in ways that I cannot find acceptable when weighed against the individual's interest in their freedom.

That's why.

[Goobergunchia]

Our greatest concern on the merits of clauses 2 and 3 involves positions in which an individual may be at a disadvantage in negotiating contractual terms. We do not believe the freedom of contract should override important public policy concerns like minimum wage laws, occupational safety laws, and the ability to use the courts to gain redress for breach of contract. We do feel that these public policy concerns could be subsumed into the "compelling interest" provisions of clause 3, but at the same time we feel that the breadth of such language could be used to swallow clause 2 entirely -- thus making the two clauses essentially irrelevant.

That being said, we support clauses 4 through 6 in their entirety, and accordingly would support this draft proposal as it now stands.

[Lord] Michael Evif
Goobergunchian WA Ambassador

[Free South Califas]

And do you intend to sacrifice all principles on the altar of your personal vendetta, or should we consider you to be participating in WA legislation with some minuscule measure of good faith?

Like I said in my previous post, I also just don't like this proposal.

Ah, so all other debates are fora for your personal vendetta, yet it is not enough to influence policy? Fantastic. You sure are setting an example.

[Ainocra]

clause 5 could be abused to prevent the nation from ruling in breach of contract cases.

Also I still see no need for this, you are well intentioned but micromanaging local businesses is frankly not in the best interest of this body. You also seem to be trying to affirm business as a right, which it is not.

[Wisconsin9]

Like I said in my previous post, I also just don't like this proposal.

Ah, so all other debates are fora for your personal vendetta, yet it is not enough to influence policy? Fantastic. You sure are setting an example.

If I end up liking this proposal in its final form and it makes it to vote, then I will vote for it.

[Morlago]

We feel the same concerns as the Goobergunchian ambassador. Since compelling interest is very vague and subjective, clause 3 can be used as a political tool to outlaw the freedom of contract and the rights specified in clause 2, with a reason of, for example, "ensuring the stability of the nation". Having said that, we support this proposal and will vote for it when this problem has been resolved.

[Cowardly Pacifists]

Our greatest concern on the merits of clauses 2 and 3 involves positions in which an individual may be at a disadvantage in negotiating contractual terms. We do not believe the freedom of contract should override important public policy concerns like minimum wage laws, occupational safety laws, and the ability to use the courts to gain redress for breach of contract. We do feel that these public policy concerns could be subsumed into the "compelling interest" provisions of clause 3, but at the same time we feel that the breadth of such language could be used to swallow clause 2 entirely -- thus making the two clauses essentially irrelevant.

Yes, I am struggling with that. I want the proposal to recognize a general right to contract as I've described it but I also acknowledge - as you do - that some contracts are inherently unconscionable, illegal, or bad policy (for example, contracts to sell your house for a song, contracts to sell a person into slavery, or contracts to form a monopoly on a resource). I'm trying to find a balance where nations must recognize a right to contract but are free to restrain it in permissible ways.

My "compelling interest" test was a stab at that. Technically - as you've surmised - it's a loophole: nations could conceivably come up with a reason why virtually any contract goes against some compelling national interest. But I thought reasonable nations would understand that this is an extreme remedy, only to be used where absolutely "necessary" to meet some very important national policy interest (like preventing folks from working for sub-standard wages). At the very least, it forces nations to justify why they would deny the right to contract in certain cases.

I'm also afraid that without something like clause 3, the proposal would be illegal for conflicting with a great many proposals. There has to be something in the proposal that allows for nations (and the WA) to restrict the ways in which people contract, if only because a great many resolutions already do so.

I'm certainly more than willing to consider other language that will recognize and establish a general right to contract while also protecting the right of nations to pursue their policy objectives. I have a feeling that this issue is the one that will end up being the most divisive if this ever gets to a vote, so I'm certainly eager to hear the thoughts of others on how best to toe the line.

clause 5 could be abused to prevent the nation from ruling in breach of contract cases.

Also I still see no need for this, you are well intentioned but micromanaging local businesses is frankly not in the best interest of this body. You also seem to be trying to affirm business as a right, which it is not.

I drafted this because I believe the right of an individual to utilize their own judgement in determining how, when, and where to pledge themselves to their fellows is an important aspect of our liberty which has not yet been recognized by this Assembly. I don't micromanage anything - in fact, the last clause of my proposal gives nations the freedom to decide for themselves what (if any) formalities to contract will be required in their nation. And this certainly isn't a right to form businesses; Clause 3 would permit (say) a communist nation to outlaw corporate formation contracts or contracts that devise or hold wealth (i.e. wills and trusts), as doing so would certainly be necessary to pursue their communistic economic policies. Not all contracts are business related (though obviously, a great many are). Some deal with property (I'll let you cross my property if you will clear a path), some deal with domestic relations (I'll raise the boy), and some are just promises that - for whatever reason - we want to be legally enforceable. If you really think about it, a contract is just a promise that society expects you to keep. Contracts don't have to be about buying and selling things.

As for your point about clause 5, I really don't see how it would be abused to prevent ruling in breach of contract cases. The clause does two things: (1) it requires member nations enforce the contracts of other nations if those contracts are lawful domestically (stole borrowed that idea from Christian Democrats), and (2) it prevents nations from absolving folks of their foreign obligations without the consent of all parties. The first part, I think, is clear enough. The second was included because I worry about folks making agreements in (say) an extremely pro-business nation and then (when things go bad) skipping out to an extremely anti-business nation where such contracts are unlawful in order to avoid their obligations in the pro-business nations. The anti-business nations would not be obliged to enforce the foreign contract, but they would also not be permitted to absolve the agreement without the consent of the other party: that is, they don't have to help the other side collect on the contract, but they can't declare the person free of the obligation either.

I hope that clears things up a bit.

[Ainocra]

Making contracts is a part of business, you do not have the right to make them, you must acquire a business license in order to do business. The nation of Ainocra in particular is built on a social contract which stipulates many of the ways people must act.

It is not, nor should it be an inherent right. some societies only allow contract to be made between certain people, marriage contracts for example. some societies are caste driven, some are not, some view any type type of law as heretical.

My point is

This is not only too broad, but it is unnecessary. This is not an international issue and the cookie cutter approach simply will not work.
There are too many disparate societies and types of government for this to actually be workable.

As for a specific example on clause 5
you and I go into partnership to export weapons from Ainocra to you.
We draw up a contract and sign it and then you at some point break that contract.
according to that clause my government can't rule the contract in violation unless you agree.
so naturally you disagree, and legally I have to keep sending you the weapons even though you aren't paying for them or else I would be in breach of contract.

see the problem here

"Unless all parties agree"

Now that having been said, this is still frankly a non starter. It would cause massive disruption in the international economy and has the potential for abuse.

Therefore we are still opposed.

[Sanctaria]

Being honest, I'm not completely convinced one has a right to make a contract. I believe that the freedom to do so should exist, but insofar as there being an inherent right to do so ... I don't think I accept that.

[Cowardly Pacifists]

Making contracts is a part of business, you do not have the right to make them, you must acquire a business license in order to do business. The nation of Ainocra in particular is built on a social contract which stipulates many of the ways people must act.

It is not, nor should it be an inherent right. some societies only allow contract to be made between certain people, marriage contracts for example. some societies are caste driven, some are not, some view any type type of law as heretical.

My point is

This is not only too broad, but it is unnecessary. This is not an international issue and the cookie cutter approach simply will not work.
There are too many disparate societies and types of government for this to actually be workable.

I do see your point about "special" types of contracts like marriages and adoptions. I'll try to rework clause three to make it clear that it's not an all-or-nothing deal: nations should also be free to enact reasonable restrictions on the right to enter contract where there are appropriate policy concerns at play. If you can think of better or more useful language (i.e. a specific way you'd like to see that provision written), I'm all ears.

I do think you're getting a little close to the fringe when you argue that "there are too many disparate societies and types of government for this to actually be workable;" especially where you say that this proposal doesn't work because "some view any type type of law as heretical." That sounds like pure Nat Sov - which is a fine position to take, but really not useful to the debate.

I'd rather know what additional provisions might make this more acceptable to governments and societies with different objectives and cultures. After all, everything the WA does can be objected to on the grounds that somebody might not like it. Taking that as a given, I'd rather know how to make it more acceptable to [/i]more[/i] people.

I understand that Ainocrans don't view the right to contract as a fundamental liberty interest the way my people do. But if you think about all the agreements you have made in your life - and how different your life would be if you were not free to make those agreements - I think you might better understand why I'm pursuing this legislation.

As for a specific example on clause 5
you and I go into partnership to export weapons from Ainocra to you.
We draw up a contract and sign it and then you at some point break that contract.
according to that clause my government can't rule the contract in violation unless you agree.
so naturally you disagree, and legally I have to keep sending you the weapons even though you aren't paying for them or else I would be in breach of contract.

see the problem here

"Unless all parties agree"

The part you're missing is: "prohibits Member Nations from absolving a party of contractual obligations entered into in another member nation without the consent of all parties to the agreement." If we entered into the contract in Ainocra, you'd be free to enforce it there (or have it declared null because of my breach) without my consent. This law would have some impact on truly international agreements, in that forum selection (i.e. where the contract is finalized) would be an issue. But I'd imagine that issue is already extremely relevant in international business deals such as the one you describe.

The scenario I'm more concerned with is this:
You and I go into partnership in Ainocra where you manufacture weapons and I buy them from you to retail locally.
We draw up a contract in Ainocra and sign it.
At some point, I decide that I want out of the weapons retail business but I've already contracted to buy $1,000,000 worth of weapons from you.
In order to avoid having you sue me for the $1,000,000, I flee to Cowardly Pacifists, where contracts for the sale of weapons are void against public policy.

Now, you could still sue me in Ainocran court to get out of your manufacturing obligations and/or for payment of the money (though Ainocran justice might not be able to reach me in CP). You could not sue me in CP court for payment on the contract because CP is not obliged to enforce that contract. But I could not go to a CP court and ask them to absolve me of my debt to you: CP would not have to help you enforce the contract, but if I ever left CP for a place that would enforce the contract, you could sue me there because the debt would still be owed.

Now that having been said, this is still frankly a non starter. It would cause massive disruption in the international economy and has the potential for abuse.

Therefore we are still opposed.

I get it, Ainocra no likey.

Being honest, I'm not completely convinced one has a right to make a contract. I believe that the freedom to do so should exist, but insofar as there being an inherent right to do so ... I don't think I accept that.

What's the difference? Practically speaking - at least in this context - a "right" is just a "freedom" that the government recognizes to exist.

Moreover, the proposal is written in terms of what one is free to do, not what one has a right to do. It's an elementary distinction, to be sure, but there you have it.

[Knootoss]

What is this proposals' secret agenda? I find myself in support and am confused.


Ambassador Aram Koopman
World Assembly representative for the Dutch Democratic Republic of Knootoss

[Sanctaria]

Being honest, I'm not completely convinced one has a right to make a contract. I believe that the freedom to do so should exist, but insofar as there being an inherent right to do so ... I don't think I accept that.

What's the difference? Practically speaking - at least in this context - a "right" is just a "freedom" that the government recognizes to exist.

Moreover, the proposal is written in terms of what one is free to do, not what one has a right to do. It's an elementary distinction, to be sure, but there you have it.

Untrue. In the proposal text you frequently switch between "freedom" to make a contract to "right" to make a contract.

[The Altani Confederacy]

We are not strongly convinced that this is absolutely necessary in an international sense, but we are also not bothered by anything in the draft itself. We would most likely vote for this draft as written.

-Sophie Fournier, Commonwealth WA Ambassador and Delegate of Lavinium

[Merfurian]

Clause 2 is a slight problem. Sometimes, when one buys goods or services, they are not actually supplied by a company/individual based in the purchaser's nation. At other times, the seller may be based in the purchaser's nation, but the company from whom the goods or services are being purchased are headquartered in a foreign country. I think these are international contracts. Clause 2 - from my reading:

2. DECLARES that any person who a member nation regards as competent to manage his or her own affairs shall be permitted to enter into binding contracts within that nation;

only permits contracts within a nation. It doesn't work when an international contract is - by the nature of the goods and services being bought - necessary. Would the author kindly address such issues? Perhaps he could rewrite the last part and say:
"shall be permitted to enter into binding contracts with either national or international persons or companies". I think that would fit nicely.
Bear in mind though that contract law was never my specialism at university, so I'm just guessing

Dr Klause Uliyan
OOC: It's mostly true with the real world. For example, when I buy from amazon.com's subsidiary in the UK (amazon.co.uk), I'm actually making an international contract with a company based in Luxemburg.

[Cowardly Pacifists]

What's the difference? Practically speaking - at least in this context - a "right" is just a "freedom" that the government recognizes to exist.

Moreover, the proposal is written in terms of what one is free to do, not what one has a right to do. It's an elementary distinction, to be sure, but there you have it.

Untrue. In the proposal text you frequently switch between "freedom" to make a contract to "right" to make a contract.

Untrue. The word "right" occurs all of three times in my proposal, all in the preamble, twice referring to the "right of liberty," and once referring to the right "to freely form contracts." The rest of the proposal (i.e. every operative clause) refers to what a person is free (i.e. is "permitted") to do.

I certainly don't switch between the two concepts "frequently" even if you do count what I say in the preamble.

And in any case, I still don't understand your distinction. In this context, the "right to contract" and the "freedom to contract" are the same animal. They might rightly be combined into "the right of freedom to contract."

Clause 2 is a slight problem. Sometimes, when one buys goods or services, they are not actually supplied by a company/individual based in the purchaser's nation. At other times, the seller may be based in the purchaser's nation, but the company from whom the goods or services are being purchased are headquartered in a foreign country. I think these are international contracts. Clause 2 - from my reading:

2. DECLARES that any person who a member nation regards as competent to manage his or her own affairs shall be permitted to enter into binding contracts within that nation;

only permits contracts within a nation. It doesn't work when an international contract is - by the nature of the goods and services being bought - necessary. Would the author kindly address such issues? Perhaps he could rewrite the last part and say:
"shall be permitted to enter into binding contracts with either national or international persons or companies". I think that would fit nicely.
Bear in mind though that contract law was never my specialism at university, so I'm just guessing

If we're talking about contracts in international business, my impression is that every contract is entered into "somewhere." Sometimes that's the purchaser's nation, sometimes that's the seller's nation. Sometimes an international agreement would be recorded in a completely neutral nation, or in several nations.

The reason clause 2 is worded the way it is all comes back to age of majority. I'd really like to just avoid the whole mess by getting rid of "within that nation" so the clause reads:

2. DECLARES that any person who a member nation regards as competent to manage his or her own affairs shall be permitted to enter into binding contracts;

If I thought folks would not object, I would solve the issue as above. I'm just worried about some nations complaining that the "competent" two-year-olds of Quelesh or Linux and the X are not permitted to contract "in MY nation" even though they are regarded as competent elsewhere. I don't mind your wording, and I may just run it up the flag pole in the next draft and see what folks think.

What is this proposals' secret agenda? I find myself in support and am confused.

Don't be fooled! I'm still trying to turn the world over to the neo-feminists, eco-terrorists, and radical vegans.

[Sanctaria]

Untrue. In the proposal text you frequently switch between "freedom" to make a contract to "right" to make a contract.

Untrue. The word "right" occurs all of three times in my proposal, all in the preamble, twice referring to the "right of liberty," and once referring to the right "to freely form contracts." The rest of the proposal (i.e. every operative clause) refers to what a person is free (i.e. is "permitted") to do.

And what part of the right to freely form contracts do you not see as a right to form a contract? Which I have a problem with. And last time I checked, the preamble was a part of a proposal. So no, not untrue. True.

I certainly don't switch between the two concepts "frequently" even if you do count what I say in the preamble.

And in any case, I still don't understand your distinction. In this context, the "right to contract" and the "freedom to contract" are the same animal. They might rightly be combined into "the right of freedom to contract."

No one has an unalienable right to form a contract. Eat, shelther etc, yes. A contract, no. They can have the freedom to do so.

[Ainocra]

Say we signed the contract in cowardly pacifists, then where would I be? I, and my facilities are in Ainocra so I would still have to ship to you, also what if we signed it in international waters/space? What if we signed it in Unibot? would Eduard come out of his scotch fueled haze to enforce it for either of us?

what if we signed one here on the floor of the WA where no nation's law holds sway?

My nation agreed to supply the evil skull over there with his fill of cigars, but he doesn't wanna pay. He said something about not having hands to sign it. All in all there are still in my view too many variables between the various economic systems to make this truly workable at present. (and me no likey

Then there is the lawyers, how many business around the multiverse would use this to avoid paying for goods and services?

Of course, you could always simplify it by adding another committee something like the International Contract Judgment Committee for Overseeing Useless Internationally Redundant Contracts. (perhaps a longer name, I don't think that one quite captures the right essence. )



Now that i've needlessly complicated your day, lets go have some scotch at the bar next door.

[Cowardly Pacifists]

Untrue. The word "right" occurs all of three times in my proposal, all in the preamble, twice referring to the "right of liberty," and once referring to the right "to freely form contracts." The rest of the proposal (i.e. every operative clause) refers to what a person is free (i.e. is "permitted") to do.

And what part of the right to freely form contracts do you not see as a right to form a contract? Which I have a problem with. And last time I checked, the preamble was a part of a proposal. So no, not untrue. True.

I guess you got me there...

And in any case, I still don't understand your distinction. In this context, the "right to contract" and the "freedom to contract" are the same animal. They might rightly be combined into "the right of freedom to contract."

No one has an unalienable right to form a contract. Eat, shelther etc, yes. A contract, no. They can have the freedom to do so.

I don't find your distinction satisfying. Rights can be thought of as positive and negative. If you have a positive right, it means that others (governments) have a duty to take some action. The right to food and shelter (arguably), or (more commonly) a speedy trial, are positive rights in the sense that government is required to take some action to provide you with those things.

A negative right is a freedom the government must respect. If you have a negative right, it means that others (governments) have a duty to avoid certain actions. The right to bear arms, the right against quartering of troops, and the right to free expression are among these negative rights. They all prohibit government from taking certain actions that would infringe on your freedom.

Personally I feel that most rights can be understood as having both a positive a negative aspect if you think about them hard enough. The right to petition, for example, includes both the positive right that governments provide a forum for such petitions, and the negative right that government refrain from actions that would prevent a person from petitioning.

But, again, all this is highly academic and not really worth getting into much more. Suffice to say, I don't find your distinction between a "right" to contract and the "freedom" to contract very satisfying. If people are free to contract, it is only because they have a right against unreasonable government interference in their independent dealings.

Say we signed the contract in cowardly pacifists, then where would I be? I, and my facilities are in Ainocra so I would still have to ship to you, also what if we signed it in international waters/space? What if we signed it in Unibot? would Eduard come out of his scotch fueled haze to enforce it for either of us?

what if we signed one here on the floor of the WA where no nation's law holds sway?

My nation agreed to supply the evil skull over there with his fill of cigars, but he doesn't wanna pay. He said something about not having hands to sign it. All in all there are still in my view too many variables between the various economic systems to make this truly workable at present. (and me no likey

Then there is the lawyers, how many business around the multiverse would use this to avoid paying for goods and services?

Of course, you could always simplify it by adding another committee something like the International Contract Judgment Committee for Overseeing Useless Internationally Redundant Contracts. (perhaps a longer name, I don't think that one quite captures the right essence. )



Now that i've needlessly complicated your day, lets go have some scotch at the bar next door.

I must say that this hypothetical is getting a bit too much for me. I'm starting to loose sight of the forest for the trees.

So I'll just close by pointing out that the problem of working out which law to apply in international agreements is beyond the scope of this proposal. The ONLY thing that provision 5 does is ensure that nations will enforce foreign contracts if those contracts are lawful domestically, and it prevents nations from unilaterally voiding contracts from another jurisdiction. The point is to prevent Cowardly Pacifist courts from declaring that an Ainocran gun-sale contract (or any other contract from any other nation) is void without the consent of the parties.

Business people can work out for themselves how to structure their dealings to take advantage of the most beneficial national rules and laws - as they always have. This proposal does nothing to hamper or complicate that practice. In a way, it makes the practice more predictable, as Ainocran merchants will not have to worry at all about the possibility of folks voiding their Ainocran agreements in nations with less-friendly business environments.

Best Regards.