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Old 20th April 2009, 09:22 AM   #135
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Join Date: Apr 2007
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Originally Posted by ImaginalDisc View Post
It involves property rights, as anyone who's had a divorce can tell you. In that it is a voluntary agreement which addresses property rights, it's a contract.
That's like saying "in that a clock has two hands, a face, and knows what time it is, it's a human being." (ETA - on second thought, that's a little harsh. The point is, not every contract involves property rights, and not everything that involves property rights is a contract.)

A will is voluntary and involves property rights, but it's not a contract.

And a divorce is not a breach of contract claim.

If you can show me a breach of contract suit that was maintained (in modern times) where the contract alleged to have been breached was a marriage (not to be confused with a marriage contract, which is a promise to marry and not a marriage itself), then I might back off a little from my claim that marriage is not really a contract. (But I will probably stick to my opinion that marriage shouldn't be considered a contract.) The fact is that the promises made in a marriage are just not legally enforceable in the same way contracts are.

Just to be clear, I'm not claiming that my view is the consensus view of legal scholars and that those in this thread who call marriage a contract just don't know what they're talking about. I think there is a debate about this Out There, and I'm sure there are good minds and good arguments on both sides.
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