Sunday, 6 May 2012

Justice and Wet Dreams



 'A young Egyptian, having become infatuated with the courtesan, Thonis, made a contract for her services for a large sum of money.  That very night, however, she appeared to him in a dream in so vivid a manner and posture so provocative that his lust for her was utterly sated.
  When he failed to keep their tryst, Thonis took him to court demanding the cash due her under their contract.  The judge, Bocchoris, ordered the Egyptian to bring in the money, and to hold it aside while Thonis was allowed only to grasp at its shadow -- the thing imagined being a shadow of the reality.'
' Lamia, the flute player, the greatest hetaira of her day, protested this injustice to a colleague. Though the dream-Thonis had sated the young Egyptian passion for her, the shadow of the money had not set the courtesan free from her desire for it.'
 Was Lamis right?
  Suppose contracts for sexual services are legal and conscionable so Thonis can sue for damages. Surely the court has to grant substitute specific performance- i.e. the payment of the agreed on sum,  less, perhaps, Thonis's 'transfer earnings'- i.e. her regular tariff for walk-in trade- so as to make both parties as well off as if the contract went ahead?
   Is there a counter-argument? What if the defendant's lawyer maintains that Thonis performed some action such that her phantom appeared to his client and satisfied his desire so that she herself was not put to trouble? In that case, it is the phantom who should be rewarded and, it may be, the shadow of the silver suffices to do so. This argument holds because Thonis has 'unclean hands'. She has done something in bad faith so as to make the contract unequal in that the other party would no longer have a desire for specific performance on her part, should she have decided to renege.
  Thonis, of course, would maintain that she has no control over to whom or to what purpose she appears in dreams. Her hands are clean, she acted in good faith. Judge Bocchoris has rewarded her shadow with shadow wealth- and perhaps this is shadow Justice- but what of her own claim?
 The defendant's lawyer might argue that his client had not in fact entered a bilateral contract, but, being indifferent as between the phantasm of Thonis, and the actual Thonis, merely advertised a unilateral contract stipulating what consideration would pass in return for the slaking of his lust. Thus, the courtesan should be disallowed substitute specific performance- which is damages- because otherwise something which is not, in essence, a bilateral contract is treated as being so.
 Thonis has a counter-argument in that, even if the contract is not a contract, nevertheless, by participating in it she performed a service for in return for a promise of payment and thus has an action in Assumpsit or under an implied contract. What was the price of the service? Clearly, it is the price stipulated in the contract, even if that contract isn't a contract simply because the defendant did not stipulate for any other sum as consideration for Thonis's entering into this contract-that-is-not-a-contract.
  Judge Bocchoris, now, has a chance to put forward an argument touching upon the nature of Justice.  He can say that the moment Thonis brought a suit for damages under a implicit contract for a service- viz. the service of entering into a contract-that-is-not-a contract- her failure to specify that this was the case meant that he, himself, as Judge, was released from the duty of judging of that issue and only had a duty to provide a show of enforcing Justice with respect to a mere show or appearance of a contract. But, since no contract becomes Justiciable, being of itself permanently either unripe or moot (i.e. no party suffers injury save by some supervenient, multiply realizable, mental act of their own), it therefore follows that such Justice as is invoked by any Contractarian theory is but a meretricious phantom or wet-dream.'

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