Contract Law

emmacaterine

Shadows For Sale

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At the end of every seven years you shall grant a remission of debts. “This is the manner of remission: every creditor shall release what he has loaned to his neighbor; he shall not exact it of his neighbor and his brother, because the LORD’S remission has been proclaimed. -Deuteronomy 15:1-2

junk-debt-buyers-consumer-lawsuits
Debt is often portrayed like this, insurmountable garbage or an overwhelming flood. But for debt buyers, it is a valuable commodity.

A personal goal of mine in writing this blog was to do a somewhat extensive application of all of Marx’s Capital to U.S. law. That goal did not quite materialize as I got caught up in various things, but I recently started an amazing reading group through DSA’s Socialist Feminist Working Group for women and nonbinary people to read through Capital Vol. 1. Since I will be putting time into not only re-reading it but also discussing and learning from my nonbinary and sister comrades, I figure might as well apply that knowledge to the law.

So those who have read Capital know that Marx starts things off with his analysis of what a commodity is and why the nature of commodities leads to commodity fetishism. He famously (or perhaps infamously) uses the example of linen and coats for commodities. He did not pick these commodities at random: coats are a commodity that has near-universal familiarity and linen is one of its components (at least in the 19th century). They also have a clear utility: coats keep us warm and linen can be used to make clothes like coats. And they have a clear root in production through private labor: coats are tailored and linen is weaved. But this first chapter of Capital Vol. 1 is supposed to cover all commodities because of how Marx comes to his definition of the money-form.

Marx begins by describing the two values contained in commodities: use-value, the utility of a commodity in its consumption or use, and exchange value. Exchange value is derived by the relative value between two commodities, with Marx giving the example of 20 yards of linen=1 coat. Marx notes that every commodity has an extensive number of relative values, essentially as many as there are commodities in the marketplace. He explains that these other relative values are needed to really understand the value of a commodity. If, for example, whatever market fluctuations cause the exchange value of linen and coats to go up in the exact same proportion, their relative value will remain the same: 20 yards of linen=1 coat. Throw in a third commodity however and you can understand that the exchange value has gone up, i.e. 20 yards of linen=1 coat= 1 lb. of coffee > 20 yards of linen=1 coat=2 lb. of coffee.

As such, one can craft what Marx calls the general form of value by setting one commodity against all others – “the joint contribution of the whole world of commodities.” And per this relationship, society can come up with a commodity to serve as a universal equivalent. That commodity was gold. And this relationship of “direct and universal exchangeability” made gold into money. Gold’s existence as money then made its relative value towards other commodities the price form.

Now commodity fetishism is the part of this first chapter of Capital Vol. 1 that draws a lot of attention because of how present it still feels in our day-to-day lives. The deduction of money conversely seems a bit archaic: after all, we now have a fiat currency in the United States that does not rely on the gold standard. Is modern money still a commodity? Many would argue that is not: as the economist Georg Friedrich Knapp said, money is a “creature of law” rather than a commodity. It is important to recognize however, as Marxist economist Michael Roberts points out, that Marx is not writing about money throughout existence but rather money in a capitalist-commodity economy.

Roberts also notes that the state being able to create money “out of thin-air” as is done with a fiat currency is not the same thing as creating its value. He uses the example of the Great Recession to indicate that when the value of a national currency collapses that commodities’ demand increases to hoard value.

goldadjustedforexpansion
Note the spike in mid-2007 and then drop in mid-2012.

And I would argue a recent scourge of consumer protection law is also demonstrative of money’s role as a commodity and the importance of rooting the price form in relational values of exchange: the practice of buying consumer debts.

Debt buying regularly comes up in the context of so-called “zombie debt.” This “zombie debt” is debt which has been paid off but the account winds up accidentally getting bundled with a bunch of open debt accounts and sold to debt buyers. Many creditors (and we’re talking big names here like Bank of America and Discover) deal with this problem by indemnifying themselves contractually from any liability, placing the responsibility of weeding out already-paid accounts onto the debt buyers. The debt buyers in turn have little to no incentive to weed out these accounts because (1) there is literally no court in the US where default judgments are not obtained in the majority of consumer debt proceedings, and (2) the main statute protecting consumers, the Fair Debt Collection Practices Act (FDCPA), limits penalties for individual actions to $1,000. That’s less than practically any of the judgments that debt buyers stand to win from filing suit, so it is simply a matter of profit margin.

But how come companies are allowed to buy debt in the first place? People appearing in court, sued by a company they have never heard of like Portfolio Recovery or Calvary SPV, often wonder why they are dealing with some strange company rather than their original creditor. After all, the origin of our ideas of debt are mostly from Judeo-Christian concepts of morality, like the common seven year statute of limitations that can be traced back to Deuteronomy. As in prior to capitalism being the dominant economic paradigm, when the impetus of paying debts came from fearing judgment and sin. It is hard to get across to people in debt from a wide array of backgrounds that this moral system has little to no bearing on their legal proceedings. The judge probably will not, and the plaintiff will certainly not, care if someone has always “done the right thing” or made one mistake. Moral culpability is irrelevant: what matters is contractual obligation.

Debt, and its more appealing twin Credit, developed to allow for the expansion of capitalism for reasons that will be covered further into Capital Vol. 1. For the time being, it just needs to be understood that debt is a contractual money obligation by one party, the debtor, to another party, the creditor. Like any other contract, the rights it instills can generally be assigned to another party. U.C.C. 15-317. But assignment only provides a legal vehicle for the purchase of debt: what is the economic motivation? And more precisely, is debt a commodity despite being nothing other than a money obligation?

While abstracted to an extraordinary degree not even imaginable in Marx’s worst nightmares, debt is very much a commodity under modern capitalism. One element that reveals the debt’s commodity form is the difference between its use value and exchange value. Debt buyers do not purchase debts for the money owed on it. Instead, evaluating several factors (age, type of consumer transaction, attempts at collection), a price is formulated in relation to the necessary labor time needed to produce its value. This necessary labor time consists of administration, compliance, and legal collection. As such the exchange value winds up being pennies on the dollar or even less: it is literally a full-time job to track down people in debt and collect from them while complying with all the appropriate government regulations. And it should be noted that the use value of these debts is not the money owed either: debt buyers are well aware that most of these debts will settle for less than the principal and some (if people like me do their job right) may get discontinued altogether.

The example of purchasing debt shows the power of money as a concept, and particularly the price form. In any other exchange system, it would be difficult if not impossible to calculate the exchange value of a debt as a commodity with such ruthless efficiency. For starters the debt would not be for money but rather for commodities: to use an example we all can hopefully relate to, let’s say Rosa owes Lucy three tacos. Lucy decides she does not actually want the three tacos but wants to come out with something, so she tries to sell this debt to Margaret since she knows Margaret makes amazing pizza. Even assuming there was a generally recognized rate of exchange of one taco for one slice of pizza, why would Margaret risk purchasing this taco debt that she’ll then have to collect on when she could just go to someone with tacos and trade? It’s an intentionally silly example but hopefully it illustrates how complicated these relationships can be without a universal equivalent.

And of course the debt buying process is particularly interesting when we consider the debate of whether money is a commodity. Like money, debt as a contractual obligation is a “creature of law.” The obligations are not natural things but social relations. And most importantly how they relate to people (through their use value, or the collection of the debt) is different from how they relate to other commodities. The minute a price (the exchange value between money and a commodity) is placed on a debt, it relates to the entire world of commodities despite itself being an odd shadow of the very universal equivalent of money that allows this relation.

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emmacaterine

Don’t Break Them, Take Them: The Legal Battle To Nationalize Banks

250px-Ppstoledano
Mexican labor leader, internationalist, and Marxist Toledano who advocated for the nationalization of the oil industry in 1938.

As if the Western media did not have enough reasons to rally behind the right wing terrorists of the Venezuelan opposition protests, a great outcry arose from the powers that be when Venezuelan Minister of the Economy Ramon Lobo and the unions seized control of a General Motors factory to ensure that production halts are not used to further harm the already fragile economy. GM of course was not please about this development and ran to their imperialist US government for help – after all, these political friends tend to give them far more deference. Unfortunately for the auto manufacturer giant, Venezuela does not take kindly to such interventionist appeals, so GM’s assets were frozen. It should be noted that this was not some impulsive move solely stemming from the recent unrest: GM owes more than $665 million in damages to a local car dealership that is over 16 years delinquent. The Western media will of course ignore this fact despite that such an egregious violation of the law would probably even elicit an injunction from the capitalist courts of the US. Instead the focus is on nationalization, a word that conservatives and liberals alike have tried to make into a slur, especially in response to any attempts to condition the recent bailouts of the auto industry and banks on even lukewarm reforms.

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emmacaterine

Beyond a Contract: Envisioning the Internet as Part of the Commons

screen-shot-2014-10-09-at-1-55-52-pmMunicipal broadband advocates in Washington state, including Socialist Alternative Seattle City Council Member Kshama Sawant, have made me a very happy woman by properly executing a policy strategy on top of consumer protection litigation. Despite its enervatingly liberal name, consumer protection litigation provide an opportunity for Marxists to penetrate the expanding realm of consumerism in our personal lives.

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emmacaterine

No Consideration For The Alienated Worker

State Archives of Florida, Florida Memory. Working in the refining industry in the early 20th century was incredibly dangerous for the low-wage workers, whose labor built wealth that is still held today by the great-grandchildren of the capitalists of that time.

I know I have already touched on this with both the law and with contracts in particular, but invariably there is the temptation to dismiss the system wholesale as a completely disingenuous legal fiction only meant to give the veneer of legitimacy to the undemocratic operations of the capitalists. And I do not deny that the system has no democratic or empirical legitimacy. But it is important to understand how the system works nonetheless, because capitalists have constructed them meticulously to serve the different functions of dispossession and exploitation needed to create wealth and sustain the system itself. Thus we can construct a number of useful correlations between legal mechanisms and economic or political concepts in order to chip away at the system until there is sufficient consciousness to do away with it entirely.

Aside from the bourgeoisie academic Marxists who have the problematic “noble-savage” notion of the working class, most of the Left recognizes an overwhelming need for raising consciousness among the working class. Consciousness is in a dialectical relationship with alienation, and there are four kinds of alienation in Marxism:

  1. Alienation of the worker from the products of their labor
  2. Alienation of the worker from the production of their labor
  3. Alienation of the worker from the self as a producer
  4. Alienation of the worker from other workers

Consequentially, the Left has designed a number of means to counter each of these alienations, both broadly and specifically. Here a few illustrative examples.

  1. To counter alienation from the products of their labor, the adoption of profit-sharing.
  2. To counter alienation from the production of their labor, the use of collective bargaining.
  3. To counter alienation from the self as a producer, the creation of cooperatives.
  4. To counter alienation from other workers, organizing in unions.

And in turn, capitalists and their state retaliate against this resistance with:

  1. Outsourcing.
  2. Company-controlled contracts.
  3. Price undercutting
  4. Right to work laws

In my contracts class, we read a case called Plowman v. Indian Refining Company (20 F. Supp. 1 (E.D. Ill. 1937)) that relates to each of these four types of alienation, but for the sake of brevity I am going to focus on the use of “consideration” requirements to determine the enforceability of contracts, and how it was used in this case to alienate workers from the products of their labor and from themselves as producers.

Plowman is a great example of a case where the judge made his ruling not simply to resolve the legal issue but to formulate policy not even needed to resolve the issue at hand. Because in the legalistic sense, the workers did not have a bit of a case. Their administrators (the court’s ruling occurred after many of the workers had died) sought to collect money promised to them, claiming that the company had guaranteed it for life and that they had terminated the arrangement less than a year later. At evidence was a letter which read:

…Effective August 1, 1930, you will be carried on our payroll at a rate of $_______ per month. You will be relieved of all duties except that of reporting to Mr. T.E. Sullivan at the main office for the purpose of picking up your semi-monthly checks. Your group insurance will be maintained on the same basis as at present, unless you desire to have it cancelled.

[Signature of the vice-president]

There are two reasons why this letter is not enforceable that have nothing to do with consideration. The first is the lack of essential terms and the ambiguity created therein. Specifically, there is nothing in the letter to demonstrate that the offer was for payments until the end of the workers’ lives. Therefore, it fails at being an offer to enter into a legally binding contract, and is merely a notice of what the company plans to do.

The second is that the vice-president was not authorized to make this agreement. The laws around civil liability of corporations for their employees’ actions is a labyrinth of obfuscation to protect corporate actions. It is the power of agents to bind their principals, and the vagueness of its terms (i.e. agent’s actual authority is to perform “acts necessary or incidental to achieving the principal’s objectives”. Restatement (Third) of Agency § 2.02(1).) gives corporations considerable leeway.

In other words, the agreement was not binding. However, the judge created a hypothetical where both of these issues were not present so that he could address consideration. I have found few terms in contracts that more profoundly reifies social relations into commodity relations. It is a cruel irony that the term is called “consideration,” as it serves as crucial foundation for the purging of social considerations in a capitalist society.

More far-reaching than currency and a step-child of debt even more sadistic than its parent, consideration is the notion that contracts require a thing of value to be exchanged for a performance of promise. Particularly, the law wants consideration to be the inducement of benefit by detriment or detriment by benefit, the so-called bargain theory of consideration. Increasingly moving away from even feigning an interest in “fairness,” the courts do not police equivalency of this exchange, and the presence of value in either benefit or detriment is measured solely in exchange value. Consideration fills the “social welfare”-shaped hole in capitalism’s social organization. While its fellows “offer” and “acceptance” are, to a certain degree, a part of democratic organization, consideration is wholly a legal fiction of the capitalist world. What György Lukács wrote on reification demonstrates just how powerful the concept of consideration is:

Its basis is that a relation between people takes on the character of a thing and thus acquires a ‘phantom objectivity’, an autonomy that seems so strictly rational and all-embracing as to conceal every trace of its fundamental nature: the relation between people…The modern capitalist concern is based inwardly above all on calculation. -Lukács “Reification and the Consciousness of the Proletariat”

Lukács goes on to write that this system renders judges into statute-dispensing machines for the capitalists. Pardoning his ignorance on the specifics, it is very much true that consideration allows judges deciding cases to weigh exchange value over social value in nearly every instance.

Plowman presents a rather blatant example of this since the plaintiffs had the audacity state that there was “moral consideration” even if there was no consideration through exchange value. “However strongly a man may be bound in conscience to fulfill his engagements,” writes Judge Lindley, “the law does not recognize their sanctity or supply any means to compel their performance.” Judge Lindley then goes on to emphasize that he of course values that old workers are provided for, and extols the virtues of the old poorhouse system. Rather, the court requiring a company to do so would be overreaching its power, a power that should be left up to the legislature. What was this moral consideration? Mostly it was the past work of the workers. And what better way to alienate workers from the products of their labor and from themselves as producers than to legally declaring that their past work (the infrastructure they built, the new workers they trained, and simply the labor by which they produced value) has no value in consideration.

As Friedrich Engels wrote in The Principles of Communism:

Labor is a commodity, like any other, and its price is therefore determined by exactly the same laws that apply to other commodities. In a regime of big industry or of free competition – as we shall see, the two come to the same thing – the price of a commodity is, on the average, always equal to its cost of production. Hence, the price of labor is also equal to the cost of production of labor. But, the costs of production of labor consist of precisely the quantity of means of subsistence necessary to enable the worker to continue working, and to prevent the working class from dying out. The worker will therefore get no more for his labor than is necessary for this purpose; the price of labor, or the wage, will, in other words, be the lowest, the minimum, required for the maintenance of life.

There is no consideration, by the capitalist or humane definition, for the alienated worker. And their denial of social welfare is heralded by the paradoxical waxing-poetic of how our society values its workers.

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emmacaterine

Against “Fairness”

122188155_2700750283_z Contracts are the life blood of capitalism. As Pashukanis wrote, and as my contracts professor said the first day of class, everything in a capitalist legal system can be framed as a contract. The Constitution is the state’s contract with private interests and within itself between the various branches and departments of government. The criminal law is a contract where the accused bargains with the state to work out a deal to “pay their debt to society,” though of course the “debt” is actually accrued by their disruption of the flow of capital. And then of course, there are what we think of on a day-to-day basis as contracts. We sign contracts with our banks, credit card companies, and other financial service providers so that they can have the legitimacy, and thus the ability to use the power, of the state. We sign contracts when we marry, originally because women were viewed as property, and now because it is a risky economic relationship that the state demands some control over in order to alleviate a divorce’s disruption of the flow of capital. And as pictured above, US unions across the board generally hold the provision of a “good contract” by employers as their major, or even their only, platform.

I give that brief introduction because it is important for us to view the material dialectic reality of what a contract is as opposed to the deterministic framework propounded by capitalists and their states. One particular concept that I have oft-seen mythologized, even by the Left, is “fairness.” “Fairness” is an integral part of the market fables that not only purport capitalism as efficient, but as ethically and morally sound. The bourgeoisie own wealth because it is “fair” since they have worked so hard. The wealth inequality is “fair” because the poor do not work hard enough. When I am buying a sofa for my apartment, it is “fair” for my roommates to chip in, even if I make enough money to buy the sofa without their assistance.
Contracts are claimed to be the purveyor of “fairness” (as we will see, this is a mistaken view of their relationship). When an offer is made and someone accepts it, that is generally seen in the United States as “fair” unless the offer was made under force, fraud, or coercion. The focus here will be tailored particularly to unilateral contracts, because of a special interest in fairness with the upholding of these contracts. A unilateral contract is pretty much what it sounds like: it is an offer to carry out some future act (to make a promise) that demands some specified performance to make it binding (called consideration). Why fairness is important to contracts is fairly straightforward: unlike a bilateral contract, the offeree in a unilateral contract has no promise to leverage the offerer with. A good example of a unilateral contract is an insurance policy. Your payment to an insurance company is your consideration, and as such the insurance company promises to insure your health, life, property, etc. And of course we get really upset when insurance companies are “unfair”! People still go off about the tens of thousands being denied insurance for their homes after Hurricane Katrina. The tactic of finding “previous conditions” not reported in the purchase of health insurance was another example of a lack of “fairness” bemoaned by the Left of this country. But in both of these cases (speaking generally about lawsuits around “previous conditions” before the Affordable Care Act), the courts ruled in favor of the contract. And one of the most important things about contracts, a key element to its value in capitalism, is to bind the underclasses to unfair economic dynamics through the state’s authority.

One famous example of such a case was Petterson v. Pattberg (1928) in New York. Essentially this trial dealt with three people: the decease John Petterson, the executrix of his will (simply referred to as Petterson), and a man who held a bond secured by a third mortgage on the house. Pattberg’s bond on John Petterson’s property was, at the time of the execution of the will, unpaid upon the principal the sum of $5450, payable in installments of $250 in 21 days and then subsequently every three months thereafter. Pattberg wrote the plaintiff with an offer to accept cash for the mortgage reduced by $780 if the mortgage was paid on or before May 31, 1924 and the April 25th payment was given on time.” Petterson paid the April 25th payment on time. On a day in May, Petterson went to Pattberg’s home with the money for the remainder of the mortgage. Pattberg informed plaintiff that he had sold the mortgage. Petterson showed that he had the full sum, in cash, but Pattberg refused the money. And the court ruled that without Pattberg accepting the money, there was no legal reason why Pattberg could not rescind his original offer to reduce the payment by $780: it was not a full performance. This case was very controversial, and not just because the dissenting judge insinuated the Chief Justice was hypocritical. One of the most interesting statements comes from a law review commentator named Samuel Blinkoff. Blinkoff said that the “court gives the strict orthodox answer [but] it seems that the demands of good faith in business dealings would require a more liberal decision in cases of this kind” (Note, 14 Cornell L.Q. 1928). The question here is: what are the “demands of good faith in business dealings”?

In a far more recent case, Cook v. Coldwell Banker/Frank Laiben Realty Co. (1998) in Missouri, the issue of “fairness” gets revisited by the court with what appears to be a different philosophical approach. Cook was a licensed real estate agent, and Frank Laiben promised bonuses for any of their contracted agents who made a certain amount in commissions. This bonus would be paid at the end of the year. Cook quickly surpassed the “first tier” of bonuses, and by September she was in the highest tier with a thirty percent bonus. On this month, Frank Laiben informed the agents that bonuses would actually be given on March of the next year, and that agents who were not still with them at that time would not receive their bonuses. Cook stayed through the end of the year, and then started working for another company at the beginning of the next year. She sued to get her bonus and won. The court reasoned that Cook had made a “substantial” enough performance by September that Frank Laiben could not have made a new offer (to collect bonuses on March of the next year) without fulfilling his promise for the first offer (to collect bonuses at the end of the year).

Here’s the issue: why was Cook’s performance considered substantial but not the performance of Petterson or the Hurricane Katrina survivors? The answer has to do with the reproduction of surplus value in a capitalist economy, not with some fairly arbitrary doctrine of “fairness.” Rosa Luxemburg in The Accumulation of Capital expanded on Marx’s own assertion that “money in itself is not an element of actual reproduction”: Luxemburg writes “we must assume that capitalist society must always dispose of money, or a substitute, in just that quantity that is needed for its process of circulation… the capitalist class, that is to say, use the whole of their surplus value for personal consumption. Since the capitalists are the consumers of surplus value, it is not so much a paradox as a truism that they must, in the nature of thing possess the money for appropriating the objects of consumption, the natural form of this surplus value. The circulatory transaction of exchange is the necessary consequence of the fact that the individual capitalist cannot immediately consume his individual surplus value, and accordingly the individual surplus product.”

Unilateral contracts, and perhaps more importantly state enforcement of unilateral contracts or the lack thereof, are an exchange as much as any other. So it is not quite surprising then that the corporations and state have a vested in interest in ensuring that the governance of unilateral contracts creates surplus value for their consumption. Therein lies the difference between Cook and all these other cases: Cook was a member of the bourgeoisie, engaging in the standard capitalist accumulation in her labor and incentivized by the unilateral contract from Frank Laiben. Actually, it is more than standard: real estate is one of the increasingly effective and pervasive ways of accumulating whatever wages are retained by the workers. It is the surplus value extracted on top of the exploitation by their employer. It is no surprise then that the agents of capitalism do not want to disrupt a “substantial performance” by one of their agents generating value for their class.

“Fairness” can only be attributed to contracts when they are atomized, observed individually and in relative isolation. This is why, even when used to speak out against the unfairness of contracts, I want to propose that we cease using the word completely. We must stop looking at contracts, or even class action lawsuits about thousands of contracts, as isolated to the actions of one insurance company or one credit card company or one employer. Fundamentally, contracts are like any other instrument of capitalism: they are part of a massive function, programmed to extract wealth from the working class into the hands of the bourgeoisie.

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