Contracts and norms : LUSENET : Lessig's Contracts : One Thread

I'm sticking to the context of husbands and wives, for purposes of this discussion. Do we really want to replace marriage with contract, as the author of the article seems to suggest? Unlike the author, I think that replacing marriage with contract would have a negative effect on the attitude of spouses. People look at wedding vows in a very different way than they do contracts. To breach your wedding vows is seen as a serious betrayal. Some, however, see breach of contract as fine, if compensated properly. Maybe that view doesn't hurt in a business context, where damages may be predominantly financial and therefore much of the damage can be taken away. But how do you compensate for a broken marriage? I don't think we want to think about marriage and contract the same way. Lynne

-- Anonymous, December 15, 1998


At the risk of putting myself up for widespread criticism, I'll actually voice my support for the utility of marriage contracts in some cases. This is not to say that I think contracts should replace marriage vows in most or all cases, nor is this to say that I agreed with all the issues covered in some of the marriage contracts (i.e. liquidated damages for failing to cook dinner, etc.) But I did see some merit in marriage contracts coming out of the reading.

First, in the example of Nancy and Dave (the aspiring dancer and the first-year med student) I found their marriage contract to be quite useful. Nancy was really giving up a lot in order to marry a person she only knew for three months -- and I think the exercise of drawing up the contract in this case allowed the two of them to clearly share information with each other regarding their expectations and commitments, and probably strengthened their relationship. Granted, they could have also gained this same insight as to each other's commitments/expectations by dating for a few more months, but the decision to marry (and not go to Paris) was a time-sensitive one, and the execution of the contract enabled them to go through with their engagement/marriage more safely and more quickly than were there no contract. Also, I think the changed circumstances of the modern world where both men and women have lived their lives aspiring to some career, and where one may have to sacrifice their career (as did Nancy) result in the increased importance of a contract liquidating dissolution damages where vows were once sufficient (particularly in light of the fact that the increased presence of women in the workforce has made courts less likely to award alimony).

Second, to address Lynn's comment that breaching a marriage vow should be taken as more serious than breaching a contract, the unfortunate fact is that there are some people in this world might be more prone to breaching a marriage vow (particularly if they think they can get away with it) than breaching an important business contract for which they could clearly forsee the consequences of breach (i.e. loss of job, soiled business reputation, etc.) And in these cases, I think spelling out the liquidated damages associated with divorce might actually make these people think twice before having an affair, or quickly deciding for a divorce, since the contract enables them to forsee in black and white the dire consequences of such behavior. Oftentimes rash divorces/affairs occur when people are succumbing to their more irrational, emotional self. Tying such action to practical concerns of money might force people to shift into their practical, more deliberate selves and to think things through before jumping into something on instinct. Paul brought up in a related post that such marriage contracts could be detrimental to the kids -- if liquidating damages might help decrease the number of divorces by making people think twice before rushing into detrimental behavior, such contracts could end up benefitting the kids (though this leads into the whole argument of whether it's better for kids to grow up in a 2-parent household where marital relations might be strained (which might occur where the liquidated damages are so huge as to deter divorce) or to grow up in a more happy, albeit 1-parent household).

The decreasing importance of the marriage vow in people's minds these days is evidenced by the skyrocketing divorce rate. Some argue that this is because divorce is just too easy these days, people resort to it much sooner than they would have in previous generations, where they would have tried to work things out a bit longer, and possibly succeeded in some cases. While in previous generations the gravity of the marriage vow alone may have been strong enough to deter people from quick divorces, this is no longer the case. It may be that the current generation could use or even needs marriage contracts as a source of supplemental deterrence.

Anyway, I was surprised by these marriage contracts as well, but trying to discern some areas in which they might be useful, as painfully pragmatic and coldly un-romantic as they might be.

-- Anonymous, December 16, 1998

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