ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, February 8, 2008

Holmes and Homes

Oliver_wendell_holmes_jr_circa_1930 The blogosphere is aglow as opinionators wage battle over morality and contract in the context of the mortgage crisis.  Early in contracts courses, students become acquainted with Oliver Wendell Holmes's position on contracts -- that is, a contract is a promise to either perform or to pay damages in case of compensable harm resulting from the breach.  They also struggle with their moral instincts that pacta sunt servanda -- one ought to keep one's promises. 

In the commercial context, the Holmesian perspective predominates in large part because commercial parties can protect themselves against the risk of breach.  Indeed, rudimentary economic principles suggest that in some cases, breach might be preferable from the perspective of overall efficiency.  It seemed obvious to me that in the case of mortgage agreements, clearly we are in the realm of commercial agreements and no stigma should attach to borrowers who "walk away" from their mortgage obligations other than whatever stigma is associated with the terms drafted and enforced by the lender.

Here, as in so many other areas, I have been proved wrong -- or at least ignorant -- by my colleague Alan White, who has directed me to numerous postings suggesting that we ought to feel (and vent) moral outrage directed at the borrowers on whom those poor, credulous, trusting, caring, unsuspecting lenders are foreclosing.  For example, note the tone of these readers' comments on CNN's Money Blog.

Such outrage at borrowers is not confined to anonymous (or semi-anonymous) blog posters.  George Will, for example, points out that freezing adjustable mortgage rates "amounts to a revision of perhaps hundreds of thousands of contracts" and will not help "scruplous borrowers who have scrimped and sacrified to fulfill the obligations of their contracts."  Is that right?  I think it probably will preserve my property's value if my neighbors are not forced into default. 

Kevin Funnell of the Bank Lawyer's Blog doesn't see it that way.  How would you feel, Funnell asks, if your "deadbeat" neighbor gets the benefit of a loan rate reduction?  According to Funnell, in an economic climate that rewards such malingerers, those of us who honor our commitments and pay back the money we borrow when and on the terms agreed to are "SUCKERS."  On Mish's Global Economic Trend Alnalysis, Mike (Mish) Shedlock criticizes "60 Minutes" for "legitimizing" walking away -- that is, the practice of defaulting on one's loan payments rather than re-financing. 

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February 8, 2008 in In the News | Permalink | Comments (0) | TrackBack (0)