Warning: As I’m sure will be painfully obvious to all lawyers, I am not a lawyer. My memory of legal analysis, concepts, and terminology is a mere fuzzy recollection from my Law and Economics class as an undergraduate. But I hope the point of the following is clear.
Eugene Volokh has an interesting discussion of the Great Blackmail Puzzle in a recent post. I have no Great Answers for the Great Puzzle, but I do wonder: Is an agreement not to do something in exchange for money generally considered to be a valid and enforceable contract? In other words, does not-doing-something count as “consideration” in the same way that doing-something does? I suspect not. And does all blackmail involve the pseudo-consideration of merely not-doing-something? If so, perhaps blackmail is, at the very least, an unenforceable contract.
Consider the following examples from the perspective of only whether the contract is valid and enforceable or not. (In other words, forget about laws against blackmail for the moment.)
Example 1: Imagine that I am a secretary that works for your spouse. Could I make a legal deal with you whereby I would agree not seduce your spouse in exchange for a monthly fee?
Example 2: Imagine that I am a secretary that works for your spouse. I have the hots for your spouse and have been flirting constantly for the past two weeks. (In other words, the seduction is already in progress.) Could I make a legal deal with you whereby I would agree to stop seducing your spouse in exchange for a monthly fee?
Both of these examples seem dubious to me from the perspective on contract law. But Example 1 seems more suspect, because I am not just agreeing to not do something, but agreeing to not start doing something. Does such really count as consideration? Perhaps not.
But what if what is being not-done is more mundane?
Example 3: Imagine that you own a piece of property mostly surrounded by my farmland. Could you make a legal deal with me not to develop my property in exchange for money?
Example 4: Imagine that you own a piece of property mostly surrounded by my farmland that has already in the process of development. Plans for building are well underway. Could you make a legal deal with me not to develop my lots in exchange for money?
Both of these examples seem entirely reasonable. But they seem to be agreements to refrain from starting doing something and refrain from doing something, respectively, just like the first two examples.
I’m not sure what the difference between the two sets of examples is, apart from the first set involving morally indecent behavior while the second involves only decent behavior. That’s not a very useful distinction, to say the least.
An alternative explanation is that there are no transferable “rights of seduction” (or transferable “rights of free speech,” as in Eugene’s examples), while there are transferable “rights to build on land.” But why would one right be transferable, but the others not?
A third explanation, and the one that seems best to me, is be that while the first two examples involve only the consideration of not-doing-something or not-starting-doing-something, the second two examples involve the additional consideration of your gaining the power to do something. In other words, the second two agreements don’t just forbid me to develop my land, they also give you the power and right to develop or not develop the land as you see fit.
Let me make this distinction more clear. Consider a standard case of blackmail. I agree to not reveal your indiscretions in exchange for money. In this transaction, you are not gaining a right to do anything. You always had the right to reveal your own indiscretions if you saw fit. You are simply paying me to refrain from doing so. I think that doesn’t meet the legal standard of consideration.
Does that sound even remotely correct?