some thoughts on marriage k : LUSENET : Lessig's Contracts : One Thread

OK, I understand the utility of relationship k between persons that the law otherwise wouldn't recognize (i.e. homosexuals or polygamy, and variations thereof). Hey, who are we to judge? I also understand that one might want to go against traditional gender roles. However, I think that there are some problems that the k may create that the author simply dismisses. For example, the author suggests that some couples may want to contract about who does the dishes (or reads bedtime stories to the children). Fine, but what happens in the case of non-compliance?? The author realizes that injunctive relief would be the alternative, liquidated damages. Pay $100 for each act of non-compliance. OK, what if the money from the relaitonship is pooled? Then there really is no way to enforce the contract,, except for dissolution......... But, I would argue that the spouse not in breach would only choose to enforce the k when the breach is considered really serious by the spouse not in breach. As a predictive matter, I think that a couple with a marriage k would bring to the attention of the authorities (court, arbitrator, or otherwise) a breach of the k only in the exact same situation when they would otherwise get a divorce.

A final question (hypothetical, rant, whatever) would be: what would happen if the husband refuses to do the dishes for 5 years and the wife doesn't care at all. Then, for entirely different reasons (something not contemplated in the k) the wife grows sick of the relationship and sues for breach and dissolution citing the dishes clause. The husband realisticaly has a defense that he is not in breach because the wife never cared about this portion of the k before and consented to previous "breaches."

With that said, a lot of the above is extreme....and for the record I do believe in these k in many situations. However, there are many problems not contemplated the author (at least not in the portion we read)......

-- Anonymous, December 15, 1998

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