Take for instance the case of contract, which has been so much discussed
with reference to the Irish question. Nothing can be clearer than
that the enforcement of contracts is one of the principal duties of a
government. The principle of _caveat emptor_ may occasionally lead to
results not altogether consistent with strict morality; but there will
always be fools in the world, and it is better they should pay for their
folly than that the State should be perpetually interfering in the vain
attempt to protect them. The bargain may be a bad one, but it is far
better that men should be held to their bargains than that every loser
should have a loophole provided to escape by appealing to some legal
quibble or State-provided tribunal of arbitration.
But there are limits to this salutary principle. The contract must be
a free one, freely entered into by parties who meet on equal terms. If
it is a compulsory one, which the weaker party has practically no option
of refusing, the case is altered. Thus, in the case of children, it is
absurd to say that they are free agents in contracting for the disposal
of their labour, and the State properly interferes by Factory Acts to
limit the number of hours for which they are to work. So in the relations
between landlord and tenant, whenever they meet on equal terms, and
the tenant has an option of either taking or refusing to take a farm
at the rent asked, both sides must be held to their bargain, however
disadvantageous it may turn out for either of them. But if the landlord
is practically omnipotent, and the tenant has no alternative but to
promise to pay an impossible rent or to be turned out on the roadside
and die of starvation, it is by no means so clear that the State should
enforce the bargain unless the landlord submits to equitable terms. Or
again, if the rent is not due to the intrinsic value of the land, but
is a confiscation of the tenant’s improvements, it is far from being
self-evident that the law should look only at landlords’ rights and
forget all about landlords’ duties.
It is a question rather of fact than of argument or assertion, whether
such a state of things does or does not prevail at any particular time
in any particular country. If the contracts were fair bargains entered
into by free agents, they ought to be enforced whether prices have risen
or fallen, leaving it to the humanity and self-interest of landlords to
make reasonable reductions. But if they were no more equal bargains than
those of slaves or factory-children, the State might fairly interfere to
attach equitable conditions to the enforcement of inequitable contracts.
Public-domain text, read in full here on John Shaqi.
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