Homelessness and Efficient Breach

by Dave Bath

Tuesday, October 27, 2009 at 03:19 AM EDT

There is a pernicious bit of contract law theory called "efficient breach", beloved of unscrupulous capitalists, "the view that a party should be allowed to breach a contract and pay damages, if doing so would be more economically efficient than performing under the contract".

But would they want long-term homeless folk reading Posner, breaching not a contract to supply widgets, but the social contract?

Consider, by breaching the social contract, beating a well-heeled older capitalists to death, (adult kids, hefty life insurance, it’s a minimal impact murder if such a thing exists), and then immediately surrendering to police, the punishment is a long term guarantee of food, shelter, clothing, medical care, and even TV and other recreation facilities.

That’s certainly "economically efficient" for a homeless person!

So why doesn’t this "efficient breach" of the social contract, major crimes by homeless folk, happen more frequently?  After all, the damages/punishment cause the state to actually take responsibility, accepting duties that (unless you have committed a major crime) are so obviously, frequently, and cold-heartedly abrogated by governments.

Could it be that homeless folk have higher moral standards than the advocates of "efficient breach" theory?

I suppose Posner would have to commend a starving person who mugged or murdered a silvertail on their supreme legal reasoning capabilities, or be branded a hypocrite.

I wonder too, whether for all their mouthings, all the political parties, and indeed the population at large, practice efficient breach when it comes to homeless folk.  Why bother putting in the effort to solve the problem, to prevent the causes of homelessness and address the results, when the homeless have no political voice because they have no fixed address and are not on any electoral rolls, when they can be made invisible by council by-laws against "begging", when through the privations of the weather and poor nutrition, the problem of any individual resolves itself in death relatively quickly.

When a few hundred thousand healthy people lose their houses in bushfires, instantly as many tents, blankets, toys, phone charging stations and cheap loans are provided.  Instantly mountains of food appear.

Every time there is cheering for the promises of lower taxes that mean winding back the social wage and the programs that protect those most poorly served by our society, the applause is for "efficient breach" theory.

Yet every time a corporation uses efficient breach against a single consumer, paying for good lawyers to achieve a minimal rap over the knuckles… shock… horror!

Maybe next time someone on the street asks for help, take a minute or two, get them the tram ticket, a carton of milk, a piece of fruit… and don’t ask for thanks but forgiveness.