Sunday, March 08, 2009

A couple of quick points on the Merchant of Venice from a contract law perspective

Joe-the-Math-Guy is taking a Shakespere class from one of the professors at the small liberal arts college where he teaches. They are doing the Merchant of Venice and he asked for my take on a couple of the questions it raises from a contract law perspective.

So I figured I'd put a copy of that here, too.


First of all, to reiterate what I said in the discussion in the car, the contract would absolutely be void if it were written in America today. Selling body parts is illegal in every state and it is a basic tenet of contract law that you cannot contract for illegal products or services, or rather, you can, but the courts will not help you if there’s a dispute.

I have no idea what the common law looked like in Venice at the time of the story. Given than transplant surgery was not a reality at that time, it is unlikely that the issue of body parts as a commodity was something the courts had addressed before. But there are plenty of what us law folks like to call “policy reasons” for the court to declare the contract invalid. “Policy reasons” are justifications for a law or decision that are based in the public policy and based on what the person doing the reasoning believes is best for society as a whole. “If people were allowed to sell their organs, poor people would become organ factories for the rich” is a policy justification for a law.

Given the state of medicine at the time, for the court to allow the contract to proceed would be essentially legalizing contracted murders. That alone is a reason why the contract wouldn’t fly.

For what it’s worth, from a legal perspective, Portia’s argument is as absurd if not more so. It’s a basic tenet of the common law that any granted right must also entail any incidental powers necessary to its exercise. For another example, I can’t offer to rent you my car, have you sign a contract and pay me, then announce that you can not use any of my gasoline, even if you replace it because the contract you signed had no provision for you being allowed to use any of the gas. If this sort of thing were allowed, contracts for even the most minor deal would have to be much too long and detailed and nothing would ever get done in this world.


PG said...

Good point re: Portia, though she's still my favorite Shakespearean heroine. However:

1) While they probably didn't have viable transplant surgery, the sale of relics, which quite often were various bits of saints' bodies (John the Baptist's femur, etc.), was a booming trade in Renaissance Venice, so I don't think there could have been a ban on the sale of body parts.

2) Italy is a civil law, not common law, system. Though I don't know what the city-state of Venice in the time of Shakespeare was, law-wise.

Chalicechick said...

1. My bad for not making the distinction between the body parts of the living and the body parts of the dead explicit. The play only deals with the body parts of the living and what I wrote applies only to the body parts of the living or Carolina Biological Supply would be in some trouble.

2. Point taken.


PG said...

Ah, good point -- I was being overly literal about "sale of body parts." But even today we do allow sale of blood, plasma, sperm and eggs; the crucial question is whether one can regenerate what one sells (I'm surprised that the going rate for sperm is even $60 a pop, given the ease of delivery). I'm surprised there hasn't been a stronger movement toward letting people carve off a liver lobe, since those do have some regenerative capacity.

kimc said...

PG -- "(I'm surprised that the going rate for sperm is even $60 a pop, given the ease of delivery). "

I think it isn't the delivery that ups the price, but the keeping track of who it's from and what characteristics they have. Or say they have....

PG said...


My understanding was that the sperm seller himself commands $60 a pop. I'm sure the cost to buy it retail from the bank is much higher.