Below is the first second third draft of a working paper published under the Papinian Press Working Papers series. I expect a version of this to be published next year in David Howden, ed., Palgrave Handbook of Misesian Austrian Economics (Palgrave, forthcoming 2025), as part of the Palgrave Studies in Austrian Economics Book series. The working paper text is below and the PDFs of three drafts 1.8, 1.11, and 1.13. As noted below, “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” chap. 9 of Legal Foundations of a Free Society (Houston: Papinian Press, 2023), contains a more detailed presentation of some of the issues discussed here, although this paper includes additional arguments not explicitly made there.
(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.)
For more on the theory of contract, see my chapters “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” “Inalienability and Punishment: A Reply to George Smith,” and “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” in Legal Foundations of a Free Society, and the following talks or interviews:
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.
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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[Update: see various 
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