The public policy argument concerning classic covenants rests largely on hostility to *restraints* on alienation. A contract that can be freely assigned fulfills that policy, while a covenant that says you can't sell to so-and-so or for such-and-such flouts it. Zoning laws, drawing on state police power, circumvent that common-law public policy by creating a new one.
Vance
On 1/4/06, Steven Jamar <[EMAIL PROTECTED]> wrote:
On Jan 4, 2006, at 2:52 PM, Rick Duncan wrote:I agree with Michael that courts may be reluctant to adopt my view of the law of running covenants as a type of zoning regime (actually it is not mine, I have heard others make a similar argument as a better way to understand Shelley).But again, once you distinguish between the private covenants themselves and the body of law that permits enforcement against non-covenanting parties, it is difficult to reject the conclusion that the law of covenants is state action and is a kind of zoning scheme. Although judicial enforcement between the original covenanting parties of the promises they actually made to each other may not be state action, legal enforcement against third parties looks very much like a regulatory program.And so back to contracts -- the body of law that permits parties to enforce their agreements. The body of law argument is just a very tough one to make.The enforcement against others -- well my mortgage is with a company I never heard of -- a 3d party -- through assignment. And is that not very much the same thing? A body of law that permits enforcement against me by someone I never met or entered into a contract with? I consented to the assignment.They consented to assume the mortgage.Rights between parties who did not contract with each other are enforceable because a body of law says we do not need strict privity.And we could, of course, go on to warranty, and third party beneficiaries, and so on.Again, I think Rick's argument is flawed and wrong -- but still plausible enough to be entertained. I just reject it.Steve--Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-85672900 Van Ness Street NW"The best that education can give [is] the notion that responsibility and delight can coexist."Philip Pullman, crediting his secondary school teacher Enid Jones, in The New Yorker, p. 58 (Dec. 26, 2005 and Jan 2, 2006)
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
--
Vance R. Koven
Boston, MA USA
[EMAIL PROTECTED]
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
