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.