(BTW I was asked to use the inline-citation format for references for this piece, instead of my preferred modified-Chicago/footnotes format, and I think the cluttered way references look in-line here is an illustration of why I despise this format.)
Errata: Add footnote 11 to the end of the section entitled “Implicit Theft”:
11. Interestingly, elsewhere Rothbard (2009, ch. 10, §7) again employs the concept of “implicit theft” in criticizing patent law: “Patents prevent a man from using his invention even though all the property is his and he has not stolen the invention, either explicitly or implicitly, from the first inventor.” “Inventions” are not ownable, scarce resources (they are designs, recipes, processes, not physical objects), and so cannot be “owned,” and thus cannot be stolen, so this reasoning is a bit confused, and, in any case, the concept of “implicit theft” makes no sense. Rothbard’s confusion on this issue also led him to support a type of patent (and copyright) by contract. See Kinsella (2008, the section “Contract vs. Reserved Rights,” and 2023h, n.46), and note 3, above.
Errata: Regarding consideration, see also Richard A. Epstein, “The Beauty Of Roman Law,” The Libertarian with Richard Epstein (Hoover Institute podcast; audio; Sep. 17, 2019), opposing the common law’s doctrine of consideration and its opposition to gratuitous contracts (around 3:30–4:00 and later, discussing gratuitous contracts).
Errata: Regarding the concept of real rights “good against the world,” see also A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001), §212 (“a real right, which is a right in a thing available against the world.”), §213 (“According to the traditional definition, real rights involve the subjection of a thing, in whole or in part, to the authority of a person by virtue of a direct relationship that can be asserted against the world. This “);
Errata: In the section “Breach of Contract, “Damages,” and Performance Bonds” for “Kinsella (2023g, text at notes 40–43)” read “Kinsella (2023g, text at note 37 and text at notes 40–43)”
Errata: In the section “Implicit Theft and Debtor’s Prison,” Justinian 1985, 41.7.5.1 is cited. It should be 41.7.5 and 41.7.5.1; the relevant text that could be quoted is:
POMPONIUS, Sabinus, book 32: Suppose that you are possessing something as having been abandoned, and I, knowing that to be the case, buy it from you; it is settled law that I will usucapt it, and it is no obstacle thereto that the thing is not part of your assets; for the law would be the same if I bought from you a thing given to you by your wife, because you made the sale, as it were, by the will and consent of the owner.
1. What someone has abandoned becomes mine immediately; just as, when someone scatters largesse or releases birds, although he does not know the person whom he wishes to have them, they yet become the property of the person to whom chance takes them, so a person who abandons something is deemed to wish it to become the property of another.
***
Update: Penner seems to have a theory of contractual title transfer, based on abandonment, license, and possession, similar to mine. See Penner on Intellectual Property, Monopolies, and Property, pp. 79–85, et pass., in particular pp. 84–85:
The elaboration of transfer from abandonment proceeds as follows. An owner may abandon his property at any time and in any place (if it is movable) [SK’s note: this should apply only to ownable resources other than one’s body. It also should apply to immovables. This distinction is arbitrary.] that he likes. At the time and place of the abandonment, any person who takes possession of it gains a title in it. Since abandonment is entirely up to an owner, he can mark his abandonment of a thing by communicating it to others. It is now apparent that, should anyone wish to pass his title to anyone else, all he must do is abandon it to him in circumstances where that other is well placed to take possession of it. This can indeed be assured by licensing that other person to take possession of it, and then abandon it while he has it in his possession. ‘Take this: it’s yours‘. The common law has recognized the taking of possession as essential to the transfer of title in various ways, in the delivery of chattels, for example, or in the ancient common law ritual of ‘livery of seisin’, in which the transferor of land picked up a piece of the earth and placed it in the hand of the transferee before witnesses. The concept of this directional abandonment is reflected most clearly in linguistic use when we say that a person leaves his property to someone in his will.
Update: See also On Property Rights in Superabundant Bananas and Property Rights as Normative Support for Possession
See also errata for Legal Foundations of a Free Society:
Regarding ch. 9, and also “The Title-Transfer Theory of Contract”: see Williamson M. Evers, “The Law of Omissions and Neglect of Children,” J. Libertarian Stud. 2, no. 1 (1978): 1–10. He writes (p. 5): “A third legally enforceable duty has been contractual obligations. The present author, however, has maintained elsewhere that the only properly enforceable contracts are those in which transfers of property title have been agreed upon. Mere promises or induced expectations should not be legally binding; only the agreed-upon transfers of property.” This implicitly recognizes the notion, as I write in ch. 9 (217, 223), that contracts need not be viewed as binding obligations, and also the related notion that breach of contract is impossible (p. 209).
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