Saturday, June 16, 2007

Wanted: Expert Metaphysician to Testify in Contract Case

Posted by Jeff Lipshaw

I picked up Impossibility:  The Limits of Science and the Science of Limits by Professor John D. Barrow (Cambridge University - Mathematics) this morning, and was struck dumb (quite an accomplishment, by the way) when I read the epigraph to the last chapter: "Everything is deemed possible except thatHume Kantwhich is impossible in the nature of things."  Sounds like the usual metaphysical hokum, except that it is Section 1597 of the California Civil Code, defining impossibility for the purposes of contract law. 

The statute was enacted in 1872.  This bears some attention, but in the meantime, I pause to contemplate a contracts lawsuit in which Kant and Hume are called as opposing expert witnesses on what is impossible in the nature of things.

UPDATE: Just to demonstrate how seriously the academic community takes this issue, California Civil Code Section 1597 turns up exactly three hits in "law journals" in Westlaw, one of which is the Emory Law Journal on "The Jurisprudence of Yogi Berra" to which some of you may have contributed.
I have now learned that the California Civil Code is full of ontological lessons like "the greater contains the less;" "a thing continues to exist as long as is usual with things of that nature;" "things happen according to the ordinary course of nature and the ordinary habits of life;" and "that which does not appear to exist is to be regarded as if it did not exist."   The practice community does not seem to be any more enamored with the statute:  I found it cited only three times, and never once did a court plumb the depths of the subject with which the legislators in 1872 have titillated us.

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I would assume that neither witness would get qualified as an expert, even if the lawyers are brave enough to offer a "foreign" witness for a US jury. Then the plaintiff's attorney will like Bullwinkle pull some expert out of a hat -- one that no one has ever heard of but is somehow able to testify exactly as to what is possible and coincidentally what is best for the plaintiff's position.

Posted by: Childress | Jun 16, 2007 5:04:39 AM

Some of the "possible worlds" theory in metaphysics could really throw contract law for a loop!

I can just imagine a plaintiff's lawyer instructing the jury on ways of worldmaking (in a parallel universe!) (see
ways">">ways of worldmaking

Posted by: Frank | Jun 16, 2007 11:01:49 AM

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