Selling Nothingness

From a recent facebook conversation:

Chu-hua Zh?Stephan Kinsella

Question: What do you think of selling nothingness? For example, ebay no longer allows you to sell your soul (though you can sell a contract for your soul). But ebay policy aside, what do you think of the legal status of selling nonexistent things?

9 hours ago · Like · Comment · See Friendship

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    Pedro Machado Buying nonexistent things is giving money. If the buyer is deceived by the seller, that’s fraud.

    2 hours ago · Like
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    Chu-hua Zh? Right, but how the hell would you prove ‘fraud’ in the case of a soul? I would say it’s sort of the buyer’s responsibility not to believe in them.

    48 minutes ago · Like
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    Stephan Kinsella

    I think a sale is the transfer of title to a given scarce resource, usually in exchange for money. A contract is like a communication: A and B express their mutual intent for the exchange to transact. but if the object of the sale is something nonsensical like a soul then it cannot transfer. If it does not trasnfer it cannot trigger the transfer of money.

    That said, there can also be unilateral contracts: A transfers money to B based on the occurrence of an uncertain (or even certain) future event (called aleatory in civil law). This is how I view all service “sales”–there is not really a sale of service, but rather the performance of the service by B is the trigger that causes the unilateral transfer of the money from A to B.

    Now, I suspect that these selling-soul or whatever things can be reclassified as really service contracts: A agrees to pay B $100 IF B performs specified actions (like signing a piece of paper that purports formally to transfer a soul). If that is really all that A and B are specifying as the service or action to be performed, then that would trigger the money. It depends on what they meant. If they mean some formal actions B has to go thru and that is sufficient, then it would suffice. If it means actually handing over a soul to A, then it would not trigger the transfer of money from A to B.

    15 minutes ago · Like
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    Chu-hua Zh? I think I pretty much agree with you, Kinsie. I think we both agree that the true term of contract (formal or not) is intent, i.e. ‘meeting of the minds’; so if A believes that B signing a piece of paper gives him a deed to his soul and thus is paying B to sign, A’s believes about a soul are sort of irrelevant?

    14 minutes ago · Like
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    Stephan Kinsella

    Right. I certainly think it’s hard to call this fraud, in any case. I suppose if A is very gullible and B is cynically manipulating A and makingall sorts of claims and promises that he will, in fact, deliver his soul to A, blah blah blah, then it could be a type of fraud in extreme cases, but I am prone to caveat emptor. I think in most such cases you would just say there is no meeting of the minds; that they did not both agree sufficiently on the nexus of bilateral (synallagmatic) terms that specified what was to be exchanged and/or what is to be a condition/trigger of a payment.

    I always put myself in the position of third parties (including judges). The soul-thing is obviously not at issue; only the money is. They need to know who owns it: A or B. Now, either A or B is the possessor. Maybe A handed it over; maybe not. Whoever holds it, the other one may dispute it and claim it: maybe A wants his payment back when he realizes what a stupid deal he made; maybe A refuses to pay and B demands payment. Third parties need to know who is the owner. Maybe a judge is asked to decide. These third parties can only look at objective evidence and how it conforms to customary standards of contracting. If A and B are dumbasses and engaged in such a mess of contradictory, confusing communications of their “intent,” what is a third party to do? At some point they throw their hands up and resort to some default rule of thumb, like, “the current possessor wins” or maybe “A gets to keep the money if the contract is too confusing or vague.” Whatever the third parties decide, I don’t feel sorry for the loser of A and B; they caused this screwed up situation.