 Okay. This may be a podcast it may not be we'll see. This is Jeff bar my buddy, my one of the one of the Las Vegas crowd, I call them. You know the, all the Las Vegas hoppy and rock Bardians, the guys that life longer. Yeah, got to study with hoppa and rock part at unlv. Jeff is another legal scholar and a lawyer in Las Vegas. Okay, so you and I were talking by email about rock bars title transfer theory of contract and one interpreter and one interpretation I have of something and yours. And I think you're you're interested in it because what was it what was it you're trying to figure out what's your project that you're trying to figure this out. So it ultimately leads to the, what I consider to be the failure of the corporation from an Austrian perspective. Oh, the corporation okay I right. Or all business entities not just, you know the corporate form but any entity that has government sanctioned limited liability. I think that's something you and I disagree on separately but maybe the reason is because of this I'm not sure. Well I think this will dovetail into it eventually. Yeah, they definitely relate. But my view is that limited liability is the natural state in a free market, like, because in a free market. The basic presumption is everyone is responsible for their actions right you would probably agree with that. So, limited liability simply says that a given person like the corporation which is a person which shouldn't be a person under the law I agree with you on that. But the employer let's say is responsible secondarily or vicariously for the acts of their employees, typically under the common law doctrine of respondeat superior which is like a master is responsible for the actions of his servants, which is sort of a feudalistic or even a slavery type notion. And so limited liability comes in and says no now you're not responsible for your employees. Basically says the shareholders of a corporation are not responsible for the actions of the employees. And a lot of people say that's a special privilege great into the corporation. So my view and that of rock barred and Roger Pallon and Bob Hessen, who are all defenders of the corporation is that will respond to superior doesn't make sense anyway because you shouldn't be responsible for someone else's actions. Unless there's a special reason like you directed them to do it or your, you know, a mafia boss ordering someone or your president Truman ordering someone to drop the bomb, but in general you're not responsible for other people's actions. So it's not a special privilege when the government grants you this liability exemption because you shouldn't have liability in the first place. Like that's my basic defense of the corporation but the corporation wouldn't really exist in its current form in a free market because you wouldn't have legal entity status. That's right. And remember, only human beings can act. Right. I mean you did point out that a corporation is not a person. Correct. Somebody has to be somebody has to be an actor. Right. Correct. And I'm not so opposed to managers and even some directors in some cases being liable. If they have an active role in directing the, the activities of the underlings who commit towards, but not sure in furtherance of the enterprise. Yeah, there's all these legal things but but limited liability doesn't exempt them anyway it never has. They're covered by dno insurance. What limited liability does is it says shareholders are not liable shareholders and officers shareholders. It may depend on the state I think most most statutes I've seen or focused on the shareholder. That's true but but for example Delaware and Nevada and Wyoming exempt shareholders and officers and directors. Well I would oppose that I would I would oppose that as a libertarian I don't think that officers and directors should be automatically exempted. In fact I don't think shareholders should be automatically exempted I think if you have what's called an active shareholder. But if you have a passive shareholder who just their legal status is simply that they own a share in the corporation which is simply an economic arrangement meaning that they have a bundle of rights which is basically two rights, the right to vote on who the directors are, and the right to get proceeds when there's a dividend or when there's a winding up of the corporation. Right. Where does that right come from contract. Yes, yeah I would disagree with that. Well it could come from under the current system. It's the government. Right. Well, I think that the limited liability partnerships and things like that emerged as a private common law contractual thing, and then formalized. That's just like historically true. That's just not historic partnerships partnerships but they were always general partnerships there was never such thing as well I'm not sure I'm not okay that this is a legal history issue I think that limited liability partnerships did emerge naturally without statutory intervention I think so but I could be wrong. Limited partnerships, limited partnerships were particularly used in real estate we still are to a large extent, and in large extent we're driven by tax, at least in the United States. Yeah, there's lots of distortions because of regulations and taxes and things like that. But in general. In general, if you forget about all this history. If you simply have a legal system that's a private property order where, where private property rights are respected, and people could form contractual relationships with each other. There's no way that you couldn't form a firm called a company or a firm, which is a correct. So it's a network of contractual relationships between a finite number of people right, and they all have different roles and different rights. So you have to deal with the tort stuff. And that's really interested in law would operate as tort law normally does it every person who commits a tort is liable. And then probably you could extend that liability up the chain to a degree to the extent that you can show causation, right. You have to have a reason to have secondary liability vicarious responsibility, where you want to make a second person responsible for someone else's tort. So if a manager tells a truck driver to drive a truck that the manager didn't have maintained to save money, then the manager could be liable. If the directors were where this the directors could be liable right there they're there they're part of the chain of causation. So it's just a matter of tort law. Yes, and this is the problem. And this is my point is the shareholders would almost never be liable because the shareholders have no active role. They could right there's nothing that they could they could like I said an active shareholder could be liable and they are under the law now. And if it's a if it's a if it's strictly a creature of contract. Right. Ultimately, it's going to be the plaintiff burden approved approved shareholder right that the shareholder had some sort of in your in your term some sort of causal chain. Yes, yes, but yes, yes, yes, but but if you could see this and you're conceiving my point because all the people that like Sean gap for example one of our buddies, I mean, and he's libertarian but in especially non libertarians. I don't think that you have to have a special showing. I'm sorry about the lefty opponents of the corporation and limited liability exemption. Their presumption is that the shareholder by virtue of being a quote owner is automatically liable for any torts of the corporation and the reason is because they. I think it's legal positivism. They take the state's classification of someone as a quote owner. They say well you're responsible for what. See that is they have a they have a strict liability view of torts live tour liability without even defending it or knowing what they're talking about, because I think strict liability is by and large wrong. You know, again, to show vicarious or secondary liability for someone else's actions you have to have a good reason, and it can't be because you're an owner because then that's just the state's classification of the legal rights that you have. Okay, and I would agree with that. I would fundamentally agree with that, but also sitting to convert the Congress is true that you don't enjoy blanket limited liability by virtue of the fact that you're an all. Well, I agree with that, but I think that ownership is not this is the problem people liability doesn't come from ownership. I agree. From actions from actions. That's right. A good way to understand that and this is not for you but it is for anyone listening if we if we publish this. A good way to understand it is to think of like if I own a knife. And I own the knife and someone steals it from me like breaking into my house and I steal my knife. Now my knife is missing. I don't have possession but I still, we would say I still have an ownership claim to the knife right like if I would say you still have title yes. I own the nice. I just don't possess it. Yep. Now the criminal that stole it from me doesn't own the knife but he possesses it. Right. If I have someone with my knife. He harms someone with my knife he commits it. No doubt. Then he's responsible, even though he doesn't own the knife, because he committed action. That's good. He used to means they had possession of. Now I'm not responsible, because I didn't perform the action but I still own the knife. So you can see ownership has nothing to do with responsibility. I agree with you. So therefore, so then you, I think when you say that you agree with my entire corporation because what I'm saying is the mere status of being an owner of a claim to a corporation or its assets, which is what a shareholder is, and the other, the second thing they have is the mere ability to vote for directors that capacity or status does not buy an in and of itself, make you secondarily liable for torts of the employees. That's all my claim is. Yeah, I would agree with that statement. I would agree with that statement, but you would also have to agree that again the converse is true that you may be that there's no blanket limited liability 100% agree with that. It's a virtue of the fact that you are an owner. Yeah, but but it's a burden of proof of the of the plaintiff. No doubt but it's a burden of the proof on the plan, no matter what. But but but usually it would be the direct supervisor or the managers who make these decisions the the executives and the president, the vice president, the COO, your supervisor your manager, those guys are part of the chain of causal, you know, globalization, they help direct what the employees do, even the now the directors are a different issue the directors are a little bit more nebulous, but even, even they could be liable, which is why they have dno insurance because they could be liable, right. Well, the dno insurance way. Let's bracket that because okay, so anyway, so that's the corporate that's the corporation issue. I agree on some fundamentals there but but tell me tell me how. So you want. So, and let me introduce briefly. So, there's something called the title transfer theory of contract this was pioneered by Rothbard and then elaborated by Williamson Evers. After getting the rough idea from Rothbard and then Rothbard built upon Evers elaboration in the ethics of liberty so Evers and Rothbard combined pioneered this different way of looking at what contracts are. And it's different because the conventional view, even among libertarians who basically took their notion of contract from the common law. The conventional view of contract in the common law, and in the civil law which is the Roman, the modern version of Roman law so in both major private law systems in the world today. The, the continental or civil law and the common law, the conventional view of contracts is I shouldn't say conventional because convention means contract in civil law. That's what actually contracts are called conventional obligations in the civil law, as opposed to natural obligations or moral obligations or other types of obligations or criminal or criminal or whatever. But anyway, or delictual, which is torts. Anyway, the typical way of looking at contract is a contract is a bite illegally binding obligation that arises from certain certain promises made by people in that satisfies certain legal formalities right. It's always the promise the promise. So, so in the common law we would say a contract is an offer. I'm sorry, it is an offer plus an acceptance. Plus consideration, plus consideration which is the formality and in the civil law they don't have consideration but they have something called cause which is, which is similar but it's a little bit better. So basically, if I make a promise to you. Which is, which is one way you could word an offer and effect and you accept it by your conduct or by, by a communication. And there's consideration, then there's a binding obligation, usually two or more mutual reciprocal binding obligations back and forth between us. Like I, I'm agreeing to give you title to something or payment later, either now or later depends on the time. It may be something like title to some object that you own or maybe perform a service. But the way the law looks at it is, it's an obligation. And it's legally binding. Yeah, if you don't perform the obligation specified by the contract, then you're in what's called breach of the contract. If you're in breach, then the party the party that's wronged by your breach of not doing the obligation you, you were supposed to do their, their remedy is some remedy in the law. Now, if you had a strict God enforced legal system then the remedy would be make the person do what they were supposed to do. But you know if you're if you're if your obligation was to paint a fence or to paint a painting or to sing a song. Then the courts not going to make you do that because they don't have the time and resources to make sure you did it right. Plus it's almost slavery now you're forcing someone to perform an action. Well, you might do a shade. So that's called specific performance. So the law, the law frowns on specific performance because it's too much of an administrative burden on the courts. And it's not really what the defendant wants anyway, I mean the plane it's not what the plaintiff wants anymore because the plaintiff doesn't want to force you at the point of a gun to sing a song at their daughter's birthday party. Yeah, but you'll see specific performance. Most prominently in real estate matters and you're right. Yes, hold on, hold on. Okay, let me get to that. I think that's a that. So what you're talking about is when we say the courts frown on specific performance. And instead they simply order the defendant to pay a sum of money damages damages. So even if I agreed to, like sell you a painting in my house. Or if I agreed to give you, I don't know, a six pack of Coca Cola that I own, or a special bottle of vodka that I have or if I agree to sell you a tract of real estate. The law calls those specific performance to because they're making you do it. And even in those cases they tend to just say look bucket we're just going to make you pay money. But in exceptional cases like for real estate or for a unique painting, the court will say no you got to turn that over because there's no monetary substitute for like a dolly painting or a Picasso painting, or for this unique piece of real estate because it's got a unique application. So they will make an exception to their reluctance to enforce specific performance in the case of unique personality or unique real estate. Now I don't think that should be called specific performance because it's still not making someone do an action. It's just transferring ownership of a resource, just like with money. So I think, I think that's not really an exception to specific performance. I think by and large the courts never order you to do an action. You transfer title to something whether it's money, or whether it's a good like a painting, or real estate or a car or something like that. Would you let's talk about that, because you're, you're right. The modern concept of contracts is just basically one big exercise in determining which promises are enforceable, and by how much right the end of the day your damages are some approximation of restitution. And I would say that it's not really about what performance is enforceable is by is using that as the, it's like, you have a beginning point of a contract and a promise and then you have the endpoint of transferring title to something which is usually money. In between they use this fiction of, well there was an obligation and you breach the obligation. And now that you've reached the obligation we can't make you do the obligation so we're going to make you pay money. So in the end it's like a black box where you could you could substitute for this whole analysis the Rothbardian view which is like, it's all about transfers of title to Right. And all of contract collapses for the first year lawyers in the room, all of contract law collapses into property law and correct. Correct. Yes, but the modern modern law even even tort law. No, it will become really important. Well tort law collapses into property transfer. Sure. Oh, I agree with that. When you perform a tort when you commit a tort, then there's damages owed which is money money. Now crime is different because the crime can be punished by incarceration or something so that's a little bit different. And it could also be ended against with with force so crime is a different slightly different issue. Yeah, I'm going to I'm going to probably put a pin in that because I think that all crime is taught to there would be no I think no I agree you. I'll argue that too and I tend to agree with that I think basically there should only, there should only be tort and because tort can be reduced to property, there's only property law. That's right. Yeah, that's right. If we were to talk about conventionally the Usually tort law deals with the tort having commit been committed already and then what the damages are so it's, it's like a contract. But but crime, crime has criminal law has provisions saying what what you're entitled to do to defend yourself, for example, during the commission of the crime and that's not really a contract issue that's saying like look you can use proportional force to defend yourself from an ongoing act of assault. Why wouldn't that be equally applicable to a tort. In the natural law in the natural, I guess I guess it was so yeah I think in a way you're right tort and crime are really in a sense the same thing. Yeah, there's no distinction. The law deals with the aftermath of the crime already having happened and criminal law deals with kind of what you're entitled to do to prevent it or to stop it. Why I would say the criminal laws and subset of all tort law, and it's just been appropriated by the state. I wouldn't have a big problem. I wouldn't have a big problem with that. Okay, so. So let's talk about the title transfer. The transfer to your contract Rothbard says that. And I'm basically interpreting him a little bit because Evers and Rothbard were not legal theorists, they were not. They didn't go quite far and they, and I think Rockbar made a few mistakes in his own application of his theory, like with debtors prison which we can get into. But, and this implicit depth idea which gets into this future title transfer thing that you and I were talking about an email, but what Rothbard says that promises by themselves are not enforceable. And I don't remember if he says this or other people say this but. So it in contract wall, the reason given in legal theory, the reason given by judges and by legal theorists as to why a promise that you make to someone should result in a binding obligation right which results in this contractual obligation. The reason they give is what they call detrimental reliance. Right, which is the idea that if I make a promise to you. And you rely upon that promise and you change your position, assuming I'm going to perform. And then if I don't perform. Now you've been made worse off like this. Long forward called that the long forward called that the tort of harmful promise making. That's what he got to mental reliance or promise. But the problem with that theory as Randy Barnett and others have pointed out is that it's circular reasoning because, because the theory always says that you're. If I make a promise to you and you rely on it. And then if I don't perform and then you sue me for breach of contract because I didn't perform and it harms you. Your reliance has to be reasonable because you know what if I just say, look, I promise I'm going to go see this movie sometime in the next year and so then I'll tell you what I think. And then you go do something in reliance on it's like, dude, you had no reason to rely on what I said it wasn't reasonable. It's a reasonable, reasonable in this right requirement. And the problem then is that there's a circularity because if the law doesn't enforce promises, then your reliance on my promise is not reasonable. Like, it's on your it's up, it's up to you. Yes, you're, you're taking the risk that I might not perform. And that's totally up to you. If the law does enforce promises, and then you know you can rely on my promise then your reliance is reasonable, but you can't use that to say what what the law should be because then that's circular. Yeah, I mean, again, I would say that the modern law takes, as you said a big black box and they put all the promises in the world into the big black box and they shake it under this under the you know they have this the consideration sifter and those that fall out have consideration they get enforced, and then they shift it again under the promissory estoppel detrimental reliance sifter and those that fall out get enforced and then they finally there's a third one. Under the concept of unjust enrichment or restitution if I confer some benefit on you, they shift they shift it again and those promises. And the civil law doesn't have consideration but it has to have cause, and there can't be mistake certain type of mistake, and you have to have capacity like it was a 12 year old making the contract and there doesn't count. There's all kinds, but in the end, basically the legal system says some promises count, right, satisfy our formalities, right. And those, when the other person relies upon it is reasonable and therefore if you don't perform your promise is to their detriment or you're harming them and because you harm them now you owe them damages because of breach of contracts. That's right. That's the typical theory so rock bar never say, well destroys that they just promising is never a basis for contract per se. Now one thing I disagree with them on is they seem to have this mechanical aversion to the word promise. Like they say that if I make a title transfer, that's fine like if I say, I hereby transfer to you like you transfer to me $1,000 now. Let's take a simple example, you transfer me an orange. And I transfer to you two oranges in a week, like that's our deal. One orange now for two oranges in the future. Okay, so I'm here by transferring to you to future oranges. He says that's fine. That counts as a contract. But if I say I promise to give you two oranges that doesn't, I think that's ridiculous because I think, if I say I promise to give you two oranges in a week. That could be taken as a communication of the same. Like, we don't have to be sticklers for language it's like about it's about what's communicated and what the intent is and what's what the context and what the social norms are. If I, I don't think it matters if I use the word promise or not. I don't disagree with you and sometimes that elevates form over substance for sure. But I want to back up a little bit. And let's talk about what title is because I think you, you point out very trenchably that it's really need to start with the concept of what is title what is ownership. And we use those sort of interchangeably. And, and I think, again, you point out I'm paraphrase here to feel free to clarify the title really comes down to the ability to exclude others. And it really stems from, I'm the prior owner, I'm the first owner, I get to exclude all others by virtue of the, I'm a prior owner. Let's just use that. Yeah, I get to leak. Yeah, so, so, yeah, well, being the being the first, that's the, that's the, the justification basis for why you have the claim but the claim in itself is a, is an exclusion claim. Most people don't understand this. Most people would say simplistically that, well, I think title and ownership or synonymous terms I do think there's, I agree with that. I think ownership and ownership and property rights or synonymous terms, saying I have a property right in a thing, or I'm the owner of the thing or the same, they're the same disagree there. Because you can have less than complete title, you can have less than absolute title to a piece of property. I agree with that. So, so saying that I own it, and then I have some sort of title. So, well, let's back up ownership ownership can be ownership can be contextual and partial to I mean I think they're the same thing. Okay, but ownership ownership can be limited it can be divided it can be limited in time it can be limited in scope and duration. It can be shared. I don't want to quibble over ownership and title I think I think we're similarly aligned here but yeah yeah yeah I agree. I agree with you the title is the ability to exclude. It's not the ability. So it's the league is the legal, it's the legal right to exclude. Okay, but fair enough the legal right to exclude whether I have the ability to exclude or not a different issue that so that's like that's more like the the factual ability. That's like the distinction between possession and ownership. We'll get there. But I just just just so that so that we're clear that if I wanted to use force to exclude someone. That's an indicator that, and I can legally use force, whatever that means, listen to use force. Yes, to exclude someone that I have that's a that's that's what title is, is the ability to listen to the legal legal right the legal right to listen to exclude someone. Correct. Okay. So the essence of ownership I think it's the, and the reason is the right to exclude and not the right to so most people would say the right to own is the right to use something. Yeah. Now as a practical matter in most cases when you have the right to exclude people from a given thing that gives you the practical ability to use it. Like if I have the right to let's say have a five acre tract of land in Las Vegas. Right. And a house in the middle of it. Technically speaking, I don't have the right to use it. I have the right, the legal right to exclude. No one else can use it. Correct. But if I can keep it everyone else from using it, then I'm, I'm as a practical matter free to use it. Yes, the reason I don't want to say you have the right to use it is because you don't have the right to use it because there are uses of it. That would violate other people's rights. Like, like if I own a gun, that means no one else can take my gun from me. It doesn't mean I have an unlimited right to use it because if I pointed you and shoot it or I pointed it, you know, across the street and the bullet goes into my neighbor's house and hits him, then I didn't have the right to do that action. Right. So if you say you have the right to use a resource, then you have to say well, then actions, then rights are limited by other property rights, but they're not. Right. What property rights limit is actions and that's because property rights are right to exclude. So when I say I have a right to exclude someone from my house. That means that no one else can perform a given action that means they're using my house without my consent. Exactly. Right. This seems trivial, by the way, but I think a lot of people don't think about it this way and once you do a lot of things become clearer. Yeah, becomes a negative rights versus positive rights. Exactly. Negative rights versus positive rights. The essence of property rights and so on. And it also makes clear what the object of rights are like the object of a right is always some physical scarce means that is a means of action that people can have a conflict over. Correct. That's what the object is. And there's another twist to which is interesting. And you hear this from kind of a flippant lefty types who say, it's like the people who say, oh, like, when we libertarians say we favor in America, decentralism or states rights they go states don't have rights it's like, okay we know we're not saying states have rights what we're saying is the federal government has limited powers. And that's our way of explaining this concept to you. But it's the same way when they say, well, when I say we have property rights it's appropriate doesn't have rights it's like okay well, I know. But the point is, what a property right is, it's a right to exclude. That's right. That's what it is. However, a property right is not a right between me and the resource. That's right. It's between me and other people. Correct. So a property right is a right between the owner and the rest of society with respect to a resource. But the right is the right to exclude. So it's a right to exclude all these other people from using this resource without my permission. That's all it is. And when you understand it that way then you understand that what contract is it's a derivative of this ownership right because when I say, I had the legal right to exclude someone from using a resource without my permission or consent. That implies that there has to be or there could be a communication between us. The communication by me as the owner of whether I am, or am not granting consent. That's right. I have to tell you whether you can use it or not. And then this gets to your thing about property is not always absolute and title is not always absolute. Yeah, so my, my consent can be, can be limited or can be absolute. Sure. It can be conditional or unconditional. It can be present oriented or future oriented. It can be reciprocal or own or gratuitous like it could be a donation or a gift or it could be an exchange with other things interacting. So it could be all these complicated things, but ultimately contract comes from the ability of the owner to exclude by making a communication saying you are. Not permitted and in order to use this resource and in the reductive case it could just be about your body like a girl could say, you can kiss me, or you can't kiss me as I own my body and I'm giving consent or I'm not giving consent. And if the boyfriend kisses her with her consent. It's not assault and battery. But if someone kisses a girl without her permission. It's battery. And that can be without. But as you point out it's always the latest, the later, of course, and the reason it's the latest is because we're always talking about what someone's permitted to do now in the present. And the answer is whatever the owner says. Now, it's reasonable to assume that their last standing order so to speak is the one you can, you can assume to be operative like if I have. If a girl's been on a date with a guy for a year and every date at the end of the date he gives her a kiss. She doesn't need to sign a written contract beforehand on the 10th date saying you can kiss me. He's assuming that her consent from the last time as it's going, but if she change if she changes her mind of last minute that's the, even if she promised him promise again promise at the beginning of the day. Tonight, if you take me to a good movie when you drop me off at home I'm going to give you a nice smooch. And then he drops her office he goes I've changed my mind. He can't just say well, sorry you promised me earlier. That's right. She's revoked her consent. She has the right to revoke consent, because she has the right to be clear she's revoked a property right, or when you say consent. She previously permitted the suitor to give her a kiss to invade her well say she previously she previously told him. At the end of the day you can kiss me and you don't need to ask my permission I'm telling you right now it's fine. I think he's entitled to rely upon that and to act upon that. Unless she unless she communicates no no I've changed my mind. Right, but that's her exercising her property right yeah it's withdrawing consent it's, I'm excluding you from. And that's what contract is contract is a communication by an owner about what other people are entitled to do with their resource. That's what that's what contract is. I would agree with that. And typically, in a commercial sense, it usually boils down to commercial transactions, and usually trades of of titles to property. Or titles of property for services so it's usually that in the usual case. Let's let's I just I want to be very very clear. Okay. Now that we kind of tied up what what title is agree with me the title and possession or different things. Absolutely. Okay, title to talk about this. So the factual and economic thing it's it's the it's the possession is something that Robinson. So we, the reason that Rothbard and others use Crusoe examples which is, they isolate one person as a human actor on an island, apart from society is they're trying to isolate certain features of human interaction and action. And so Robinson Crusoe on a desert island has to use scarce means to act right gather firewood and catch fish and get close and all that stuff. So he has scarce means of action, and he possesses things he uses them. That's right. But he has no ownership because there is no earlier we said ownership is a relationship between people right to a resource if there's no other people there's no relation between other people. There's no property rights there's no ownership. The problem is people use the word ownership in a in a in a in a casual way as a synonym for possession like to say I own my bitcoins is the best form of ownership because no one can take it from me. What they're talking about is possession and the user ownership because the purpose of ownership is the legal system is trying to give you the security in society to you to have possession. That's undisturbed by other people by establishing a legal rights system where people tend to respect your rights right so the purpose of property rights is to augment possession. It's like an expansion of possession, but they're not the same thing. And I can grant you certain rights in my property right if I to the extent that I own absolutely and unconditionally a piece of property be it a painting piece of real estate a car I can I can loan it to you. They can, they can give you temporary possession. It can that and that's because whenever I give permission permission, it's always a communication and the communication can have different terms, right. I can say, Oh, I'm going to let you use my car for the day. Okay, that means you don't have owners full ownership of it so you couldn't sell it. And if you destroy the car like you burn it, you know, you burn it as for an act of fun. Then you're destroying my property and you're committing trespass or something like that or conversion or whatever you conversion or trust I didn't give you permission to do that. If I sold you the car you can do whatever you want with it. That's right. But if I sold you a half interest in the car, and I said okay you can use the car on odd numbered weeks and I can use the car on even numbered weeks, then we now have a joint ownership in the car. Now, so the way I would look at it is from the, from the rest of the world's point of view. So, this gets into this thing called, I don't know what the, the common law term is but in the civil law is called in in rem and in persona. So that means that it's a personal right versus a real right. Real right means realty or property right. Yes, property right is a right you have with respect to a thing that's good against the world, even if they didn't agree. So if I own a house, I own that house. No one else is entitled to use it with my permission, even if they didn't sign a contract. That's what you have special rights by by contract saying like, okay you and I are going to co own this house. That's right. So that's a contract between us, but that what that means is a transfer of title between us, right. Well, I don't know if it's, I don't know the right way to classify it be transferred title in the real but but from the rest, from the point of view of the rest of the world, they see a unit they see Jeff and stuff and right. All they know is compared to everyone in the world Jeff and stuff and together have a better right than to this resource and everyone else that's right. So they got to get our permission right now as between us, we have a contract saying, okay, Jeff can use it in these months and stuff and can use them in these months. If we have a dispute, then we have to go to arbitration to settle our contract dispute, something like that. What you're talking about in the common law is called joint tenancy or tenants, of course, of course, of course, right, and what the common law says is that you own that as a joint tenant. You want a 50% or whatever percentage interest to an undivided whole. Yes, and maybe a better example would be like, let's say a father who dies and he leaves his home to his two children. Sure. And in the civil law it's called he leaves it to them as owners in indivision they call it so they both they are both co owners in indivision. Yep. And if you had to do numerically it's 5050 but but that means they have to work it out between themselves as to who gets to use it or how they use it. And if they can't come to an agreement, then they have to sell it right with the proceeds right. But that's not a concern the rest of the world has. That's right the rest of the world knows. If one of the two owners gives them permission to use this house for a party, then they've got permission. That's right. Unless the other brother can show Oh, I've got a contract saying you can then it becomes a messy issue and then everyone, then you have a cloud over the title and you have to basically sell it. That's right. So this co ownership presumes that there's a certain cooperation between these co owners. Always. And that's what the contract between them is. And so I see no special problems with this. And by the way, I think you can use a similar analysis to justify something like the current legal systems of of trust and yes, a restrictive governance negative, negative servitudes or negative easements. All these kinds of things can be can come out from this understanding and could be compatible with a libertarian and a Rothbardian conception of property and contract. But it's that it's all related to title transfer right we're not talking about promises just be very clear we're not talking about promises. When you're when you and I say contract we're really talking about title transfers. That's correct. Okay. The Rothbard demolished this concept of the naked promise. And in order to have an enforceable agreement. You look to whether title has transferred and what title has transferred. We agree with that. Say that again. In order to find so so we say they demolished that they have naked so well, well, so a naked promise. I think they're being a little common law centric here, because in the civil law, a naked promise is enforceable I think because you don't, you don't have to have consideration in the in the civil. Oh, I see. So, so that's why you can have you can have what's called a gratuitous promise in the civil law and it's still enforceable. The point is is that we're not we're not in trying to figure it out which promises are enforceable which promises are. We are trying to figure out whether there was a title transfer and the extent and scope of that title transfer. Correct. That's that's the job of the libertarian. And I think I think the reason of rockboard never is is that they sense that there's something wrong with this, this, this detrimental reliance idea which is circular as as other other more sophisticated scholars have pointed out like Randy Burnett. And I agree with that. And they also sense that a promise is just, it's just something you say. And look, if someone wants to rely on that, then that's up to them. Like if Elon Musk says, I'm going to make Twitter, you know, a $700 billion company by the end of the year. If I want to go buy Twitter stock and rely on that that's up to me. I'm like, yeah, I mean, he's not guaranteeing that to me. I'm just assuming he's a superstar. And I think that our reliance is a very small portion of the promises are enforceable. Yeah, the other problem I think rockboard points out is that, and others I think is at least implicit is that in a sense it's just free speech if I can say whatever I want. And so why would I be liable for saying something. So what they say is, it's all about, it's all about property you own property and your title to transfer it so really all contract law can be reduced to transfer title transfers. And by the way, if you understand the specific performance in the sense of performing requiring the performance of an action is never awarded by the courts they always just transfer title to something. Then it's even in the legal system and always really boils down to a transfer title. Why don't you just, why don't you just make the contracts be like that in the first place. So for example in this system and they don't say this but I think it's an implication. There's no such thing as breach of contract anymore because there's no obligations. That's so every contract just has a network of conditional and secondary and tertiary transfers like so for example, if you sing at your kids birthday party, or perform a magic show at your kids birthday party, and you agree to pay me $1,000. And let's say you agree to pay me $1,000 upfront so I know I'm going to get it. And I agree that if I don't show up, I got to pay you $2,000 back in damages, it wouldn't even be damages but it's like it's like a, it's like it's a what do you call it. Now there's a word and come, there's a word and a contract for a penal. Oh, liquidated damages, liquidated damages, liquidated, which by the way the courts frown on because they don't want, they don't want you to blend the penal law with. So the lack of total freedom of contract makes people fudge things like so they pretend to give you $10 or $1 for consideration because the consideration. Formality is stupid so people just write it in the contract they pretend. So if the law had give you total freedom of contract, then you could simply say, yeah. I want you to perform in my kids party your incentive is you're going to get $1,000. But then you want to make sure they're going to perform she say and, and your disincentive is if you don't perform you owe me $10,000. It's really important to me. Yeah, you'll be free to do that kind of stuff but you're not free to do that now because that damages can't become punitive. Right. That's right. And Rothbard and Evers. I mean they deal with this by pointing to something that the common law had for a very long time which are basically surety bonds. In other words, the whole the whole reason that surety bonds rose is common law's recognition of this exact problem with. Right, with requiring people to perform mature sons at your son's birthday. Well, I think the surety bond thing is similar. It's like a type of insurance which is why the word is in there. It's a way of handling the risk and the risk is this that if the other party doesn't perform. Okay, legally, they might be on the hook for damages but what do you. Okay, what good does that do you like because the guy might be long gone or it might be too expensive. Right, but that's always the problem. So you should say okay just every you got to deposit this fund ahead of time, but that's not that's very rarely feasible in contract because contracts can quite often lead to unexpected or unanticipated damages. We'll get the damage because because there's no such thing as there's no such thing as contractual damages. Well, I agree the word damages is not appropriate but just some some some future title transfer that can't be paid because the future some doesn't exist or the guys in solvent right. Well, we'll talk about that too. So my point is I think rock bar numbers over rely upon this penal bond thing. It the same way that a lot of libertarian Bitcoin space cadets do when they talk about smart contracts. They talk about smart contracts, which make no sense unless they are dealing only with digital assets like Bitcoin, right because they deal with the real world at all. The only way to make it work is to have a smart contract, I would call it an escrow, but most of the time when, when there needs to be a loan, or someone borrowing money, which is effectively what a lot of the conditional subsidiary ancillary title transfers do, like they're saying, if if if this doesn't happen, then this transfer happens, but that but that transfers always in the future is always hypothetical and it's always conditional. And that that means it's uncertain and there's no guarantee the money's going to be there. Well, let's stop right there because let's let's talk about. Well, let me one point real quick. My point is this, take a simple loan contract. I'm a young guy just got out of college. I don't have much resources. I want to start a snowball stand. I need to borrow $10,000. And by the way, when I talk about dollars, let's let's assume that there are some kind of real thing like that. I actually don't think fiat dollars can be owned any more than Bitcoin can be owned, but let's assume we're talking about something ownable. So I want to borrow $1,000 from you, or the equivalent in gold, whatever, to start a snowball stand. And you want to loan it to me because you have excess cash and you want to make a return above the above the value you get by holding it right. And so I want to loan you the money but I want to get a return which is called interest right so I say I'll give you $1,000 if you could pay me $1,100 in a year. How are you going to pay me that I say well I'm going to take the $1,000 I'm going to buy a snowball stand and I'm going to make a profit and out of my profits. I'll be able to make some money on my own and pay you back. Right. So the lender is taking a risk that the snowball stand idea might not work out he knows it in a year that $1,100 that he's being promised might not exist. Right. So, I'm going to take a slightly different take on that. I believe that in a loan transaction. I borrow $1,000 from Stefan today for my snowball stand. So that means that you have transferred title to me, correct to your $1,000 and do whatever I want concurrently today. I transfer title to you of $1,100. That's payable in the way you're running the snowball stand now. Yeah, sure. Why not. I got a face for snowballs. Well, let's back up and let's back up so just like it for some clarity. Let's take a different transaction let's say that. Let's say that. Let's say that I'm selling you a motorcycle. Okay, $1,000. Okay, so you transfer $1,000 to me now and I transfer a motorcycle to you now. Contemporaneous. Or maybe, maybe, maybe, maybe I gave you the motorcycle tomorrow but it's not about the contemporaneouses but my point is that that exchange is an exchange of title for title. Correct. Now, they're both, they're both 100% title transfers, and they're each conditional upon the other. They're mutual. They're reciprocal. Well, I would agree they're contemporaneous. Mutual reciprocal, I'm not quite sure. Well, I'm saying economically speaking, the reason I'm giving you my motorcycle is to get your $1,000. Yes. And the reason you're giving me your $1,000 to get my motorcycle. That's right. And I also will make my title transfer conditional upon you. Number one having, let's say, if you pay me money for my motorcycle, you're going to make your title transfer conditional upon me actually having title to it. Maybe. And actually delivering it. Well, you could though. Maybe, right? There's a quick claim deed. I can transfer today. Yeah, but it's not really an exchange and then it's too separate. If we're going to make this an actual transaction where there's two related transfers that relate to each other somehow. Well, I can transfer all of my interest in the Brooklyn, anything that I own in the Brooklyn Bridge, I can transfer to you right now. You can make it conditional or you can make it unconditional. That's right. That's right. That's right. But that's why it's called a quick claim deed as opposed to warranty. I totally agree. And that's in the weeds and I love the idea of a quick claim deed because I actually think quick claim the quick claiming quick claim dating or however you want to call it. Quick claiming I think is the essence of all contractual title transfer in a sense. Well, then you're saying that there's no title. You're not, you're not. That's why the law looks at it. What I'm saying is that the, just like the essence of property ownership is the right to exclude the essence of a title transfer is you're giving up whatever rights you have in favor of another person. Like, and that's what a quick claim ultimately is. Right, but if I, yes, but I'm not warranty. I'm not guaranteed. I'm not guaranteed that I own anything. But, but, but in the title transfer theory of contract a warranty is just, I transfer whatever rights I have in this to you and if it doesn't turn out to be what I what I promised, then I have to transfer something else to you so it's just like it's a it's a network of Be careful, be careful it's not a promise it's a reference. Like I said the word promise is not the problem. It's the concept it's not the word. Yeah, just, but, but, but understand it's still a title transfer. Right, go back to the motorcycle for the motorcycle for the thousand bucks. Yeah, but my only point is this some, some contractual exchanges are title for title. Yes, but title for title, they're all title for title. No it's not. Yeah, otherwise it's a it's not it's not an exchange. Well, so let's suppose you go get your nails done at a salon because I think every don't every Sunday don't you go get your. I do. I do. Okay, so you get your manicure. You're getting the. Okay, there's an economic exchange but legally there's a there's not an exchange there's a one way title transfer that's the way I look at it that's what confuses people. Economically, there's an exchange because the nail lady is performing an action or a service or labor that you want. And the reason she's doing that is to get your money. Yeah, and you're giving her the money to get your nails done right. But legally speaking there's only one title transfer and that's the transfer of the, of the money. Now, this is why people believe in elements of properties they say well, if Jeff gotten, if Jeff got a manicure, then he paid for it. That means the lady sold it so she must have owned it so she owns her labor and therefore you know so then you get to this labor ownership nonsense. It's really confusing when you, when you mix the realms of legal and economic description. My point is that my point is that some contracts or exchange. Some contracts are one way title transfer and some are are are mutual two way title transfers would you agree with that. I would agree with that. And sometimes they're contemporaneous and sometimes one of them, at least one of them is future oriented. But, and that's what a loan is. Go ahead, but I want to okay well we'll get to the loan in just a second but I do have a question about, about the nails. What happens if she does my nails, and I don't pay her that I think you've stolen from her the money that what have I stolen from the money, the money, what money, the money that's in your pocket. You have that you're in possession of but now she owns what if I don't have the money, then you haven't stolen anything but but she has a claim to money that you come into the future because that's a on what basis, because, because if you had, if you had sat down and written the contract out in 17 pages of legalese, you would have had ancillary and subsidiary and tertiary title transfers saying that's for any title to anything under your theory. Here's what you, here's what, here's what you effectively did and here's what I would say that the default presumptions of the context and the legal community and the, and the communicative framework, mean you both have agreed to because you would agree to that if you sat down and did it. The contract was something like this. Jeff, hereby, like she doesn't agree to anything actually that's right. Jeff agrees, I hereby transfer to you $20 in 30 minutes, if you have done my nails. And if it happens to be that I don't have any money in my wallet. I have transferred to you $20 plus interest in the future, as soon as I come into possession and ownership of it. So, so let's say that you have 20 bucks in your wallet at the completion of the manicure. At that moment in time, you've already transferred it so that money is her she owns it now. That's right, that's the difference between time with possession. So you have possession she has ownership and if you don't turn it over now you're, you're converting or stealing her money because you refuse to give it to her. What's the difference between 30 minutes and a year. Nothing. So, if I loan you $1,000 or you loan me $1,000 in exchange for $1,100 in interest, aren't I just transferring title today. Yes. $1,100 to next year. Yes, but I said in this case you had the $20 in your pocket. For sure. But again, in 30 minutes it could burn up. I could have a moth in my pocket. Right. And if you don't have it then you're not stealing anything because you don't have anything she owns. Yeah, I don't, I don't think that's right. I don't know why that's not right but I know I know this is the sticking point this is this is where I think you're wrong. So this is this is it this is the crux of the issue. Yeah, so I would say let's let's take it. Let's say I owe you $1,100 in a year. Forget about the original 1000 let's just say no you. I am owed, you have transferred $1,100 today. Yes, to be able to use the word oh and promise to substitute. The title is transferred today. It becomes really important because really important because you're not transferring it today. Yes, you are. You're setting in motion you're It's sort of like when the girl says you can kiss me at the end of the date then her permission given earlier bears upon what the other guy understands to be the permission at that time except in this case. She can change your mind but you can't change your mind. And the reason you can't change your mind. Well, that's a complicated issue. Not if you have a transfer today. Well, but what you're okay then It doesn't become complicated. Hold on. Hold on. The way this is right this is the this the nitty gritty this is this word. You are transferring title today. Right, you're transferring title to a future thing. That's right. But the future thing doesn't exist yet may or may not exist that's right. So you're so this is this why I sent you this stuff about in the Louisiana and there's something called sale of a hope, which I'm sure the common law has an equivalent. But if I tell you, invest in my, in my farm, and, and I'm going to have a crop of soybean. And you get half of whatever the crop is. Okay, so in nine and six months, there's going to be a crop and you get you own half of that crop, right. We both know that there might be a drought, there might be pestilence there might be a nuclear war or whatever. So the crop may be zero, but it might be a nice crop, but whatever it is you get half of it. Right. So I'm selling you now. A half interest in my future crop. So when that day arrives, whatever the crop is you own half of it if it's zero then you own half of zero. But I'm going to be even clearer than that. Because I'm transferring title today. Okay, half of the crop. That's fine. But but the half of the crop is a future uncertain thing we don't know what that is. But but again that would be explicit in the contract right of course, well it doesn't have to be explicit it could be it could be it could be applied. For example, if I go into a restaurant order. I mean that has to be understood has to be communicated either implicitly or tacitly or something. But the reason the reason is important for title to transfer today to that loan in the future is because then I can exclude people later on when we talk about priority who gets priority on that. The problem you have is is who has priority. Well, I don't think that's the problem I think that's a different issue I think we got to sort out the basics first before you start talking about I have sorted out the basics I just disagree with your basics. Yeah, but you haven't you just said you're not sure why. Well, I think that it's because of transfer of title today. Now, what is the labor I'm not, I'm not totally opposed to saying I'm transferring today it's just that what I'm transferring is a future thing, but the future. The future thing is an uncertain thing. Well I'm transferring possession of something. No, you're not transferring possession. Sure you are. No transfer title today. I as the owner can go mortgage that. Look, you cannot, you cannot possess a future thing. You can only possess a present thing. Right, but I can have title do a future thing. Okay. Right. But you don't possess it until that day arrives. That's exactly right. That's the if it doesn't exist. There's nothing to possess, which would be a theft, which would be a variation of title. It's not theft. Yeah, I disagree with that it would be a derogation of title. I don't know the derogation title means derogation is I'm doing something that interferes with the owner's title that I'm doing something that title to what to the $1100 for example doesn't exist. There is no $1100. Right, which means that the title transfer fail, which is that it did fail because the title transfer was always the title transfer to an uncertain thing. That's correct. Let's go back to the week. Let's go back to the soybean exam. No, hold on. You're sneaking in a norm in this communication. You're sneaking in a norm that says if it exists. No, I can't. It's an early part of the future. It's not. It's not a norm. It's a condition that's necessarily. The future is necessarily uncertain. Yes. So that means that if I talk about a future thing, we're talking about things that don't exist yet. They may or may not exist. That's right. Well, they don't exist now. They may or may not exist. I may have the $1100 one, right? No, you don't have the future 1100 on you now. Well, I could never have the future 1100 on me now. That's it. In fact, I don't have I only I don't have any money. I'm penniless. I'm borrowing money for you because I need 1000. Let's go back to this issue. Would you agree that when you loan me the 1000? I guess I'm the snowball guy now. Yeah, you owe me a thousand dollars. I need to spend the money to buy equipment and hire workers for my snowball stand, right? Right. I can't do that unless I own the $1000 right lenders. I mean, presumably you could I could condition I could unconditionally transfer the $1000 to you today. Or I could conditionally transfer it can be conditional. Sure. I do millions of dollars in conditional loans all the time. You may only use this loan for construction costs. You may not use that condition how I can use it but I can. If I use it for the approved purpose, I have to be able to spend it. Sure. Which means I have 100% title to it. I agree. Which is which is why which means like you as a lender don't have a security interest in that money. I'm backtracking from my know what I have is title to $1100. Correct. That's right. So you have you have no interest in that 1000 that 1000 is gone. I agree with unless I when I spent that money on my equipment, I was not taking your money without your permission. I'm backtracking from my email to you. Yes. Right. I'm retreating from my email to I agree that the $1000 if it's. We're talking we're talking about the future 1100. So, so, so then let's forget about the 1000. Let's just simply say, let's say I make a gift to you. I say hey Jeff. I hereby give you a $1100 of the of the property that I own in one year. Because that of the property I own isn't is an inherent necessary condition because I can't transfer to you future property that I don't let's let's make it even simpler. Let's say, hey Jeff. I'm a, I'm a bankrupt guy on the street of San Francisco and I have no I own nothing. I'm wearing this t-shirt that I'm wearing. That's it. But I hereby give you a $1100 right now. Right. When I say that to you have I stolen anything from you. No. Why not. You haven't stolen anything because because I haven't been exchange of titles. No, we forget about exchange. Let's let's assume we can make a one way transfer. I mean, certainly a gift that you can, you can transfer title gratuitously transfer title as a gift. Jeff, I hereby give you as a gift $1100. Right. But you say, okay, hand it over and I say, oh, I don't have any money. That's right. That's different than if I give you $1000 now. Why, why, why is it different because I wouldn't have given you the $1000 but for the change that transfer title. I disagree. When you give me the $1100 now you know that I'm giving you a thousand. You know that I'm giving you a future and certain thing you know you're taking a risk. Yes, there's certainly a risk that's that's for sure. But so is the bar risk is that I might not have the money. So is the bar the bar and the bar where doesn't it's a theft. That's that's the way ever since. This is the this is the different difference we have. So what you're saying is the risk that the lender is taking is that I might turn out to be a thief. But all that means is you're saying that if I turn out not to have the $1100 in the future, you're characterizing that as an act of theft. Yes, explain why why is it because I gave you I gave you title to my $1000. It doesn't matter. Sure it does. It doesn't matter why you gave me the $1000 sure it does it absolutely does that's a difference. You're sure it does but I have to go. So I have to practice law. I don't agree with you. Yeah, this is why I want to say that you have to go. Oh well that we should continue this. Yeah, I don't have to practice law so I don't think you have to. Unfortunately, I have a. Yes, I do. So, yeah, you know what's nice. Soon, soon you see this gray hair soon. I enjoyed this but I think I think it's good because we got to the crux of our disagreement. We are at the crux of our issue about whether and this is what rock barred and ever is make a mistake on when they talk about debtors prison and yes, unable to pay your future debt you're an implicit thief, but there's no thing in my lexicon is implicit theft. I don't know what implicit theft is. No, I agree. You're an explicit thief. Okay, well I don't think you will make sense. So let's do that as part to maybe perfect. I'll give you the last word. Thanks, definitely. Are you okay if I publish this or not. Yes, sure why not. Okay, talk to you later. Love you brother. Bye now. Love you too. Take care.