[lit-ideas] Re: Hartiana
- From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza@xxxxxxx" for DMARC)
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Wed, 18 Mar 2015 06:09:38 -0400
In a message dated 3/17/2015 5:15:17 P.M. Eastern Daylight Time,
omarkusto@xxxxxxxxx writes: "Implicatures are of interest to linguistic
pragmatics,
and have been studied there for quite a while. ... But it is not clear why
they are thought to be of great interest to philosophy."
Well, it seems to fit one type of legal acts: acts of private autonomy. As
far as these acts are concerned, as exemplified by contracts, something like
the cooperative principle is applicable, at least in those legal systems
that include the old Roman legal principle of "bona fides" among the
interpretative regulations of such acts.
One of the key elements of the background context to a "contractual"
conversation is the legal system in which that conversation takes place, and
many of those legal systems appeal to something they call, from old Roman law,
the principle of "bona fides" or good faith.
According to the principle of 'bona fides', which derives from VERY ANCIENT
Roman Law (rather than a Carneades-type of GREEK law), a contract is to be
interpreted on the assumption that the parties negotiated with one another
in good faith.
Thus, they are assumed not to be "pulling a fast one" on each other.
The principle of "bona fides" effectively overrides any empirical (as it
were) concerns we may have about the covert "strategic" manipulation in
contract negotiation. Instead, it demands that we do assume good faith.
This may seem unrealistic. But the norm dominates "reality": the parties
suffer if they try to be manipulative.
Suppose the following dialogue took place during the negotiation of a
contract for a horse:
Offeror:
i. I would like to buy your horse. But first I want to know if there’s
anything wrong with it.
Offeree:
ii. Well, the horse does suffer from weak hooves.
Following the old Roman legal principle of "bona fides", we would say that
the offeree’s utterance implies that there is nothing ELSE wrong with the
horse.
This is despite two facts
(a) the fact that the statement is consistent with there being A FEW OTHER
things wrong with the horse.
(b) the fact that the offeree may be deliberately uttering the
conversational move with this in mind -- i.e. not abiding by the old Roman
legal
principle of 'bona fides'.
The principle of "bona fides" thus overrides any "MALA fides" on the part
of the offeree.
Specifically: if it later turns out that AT LEAST ONE OTHER THING was
wrong with the horse, and it was then *known* to the offeree, he will be
liable
for misrepresentation.
The court will assume that the initial utterance (ii), a counter-move to
(i) implies that NOTHING other than weak hooves is wrong with the horse.
Cheers,
Speranza
KEYWORD: bona fides
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