Economics and the mid-life crisis have much in common: Both dwell on foregone opportunities

C'est la vie; c'est la guerre; c'est la pomme de terre . . . . . . . . . . . . . email: jpalmer at uwo dot ca

. . . . . . . . . . .Richard Posner should be awarded the next Nobel Prize in Economics . . . . . . . . . . . .

Tuesday, March 01, 2005

Property Law: A Barrel of Laughs

If you are looking for some humourous reading, pick up a casebook on property law. The weird situtations that occur and then are litigated are enough to keep you laughing or chuckling for hours. And cases involving the intersection between property law and family law can be a real scream.

Consider the following case [thanks to Alex and his contacts]. A man and a woman have oral sex. The woman saves the sperm, unbeknownst to the man, and later impregnates herself with it. She sues him for paternity; he sues her for theft.

Phillips accuses Dr. Sharon Irons of a "calculated, profound personal betrayal" after their affair six years ago, saying she secretly kept semen after they had oral sex, then used it to get pregnant. He said he didn't find out about the child for nearly two years, when Irons filed a paternity lawsuit. DNA tests confirmed Phillips was the father, the court papers state.

Phillips was ordered to pay about $800 a month in child support, said Irons' attorney, Enrico Mirabelli.

That decision seems a little wonky*. The man had no reasonable expectation that he would be fathering a child with his action. Surely the woman is the least-cost bearer of this risk.

The upper courts agreed.

Phillips sued Irons, claiming he has had trouble sleeping and eating and has been haunted by "feelings of being trapped in a nightmare," court papers state.

Irons responded that her alleged actions weren't "truly extreme and outrageous" and that Phillips' pain wasn't bad enough to merit a lawsuit. The circuit court agreed and dismissed Phillips' lawsuit in 2003.

But the higher court ruled that, if Phillips' story is true, Irons "deceitfully engaged in sexual acts, which no reasonable person would expect could result in pregnancy, to use plaintiff's sperm in an unorthodox, unanticipated manner yielding extreme consequences."

The judges backed the lower court decision to dismiss the fraud and theft claims, agreeing with Irons that she didn't steal the sperm.

"She asserts that when plaintiff 'delivered' his sperm, it was a gift -- an absolute and irrevocable transfer of title to property from a donor to a donee," the decision said.

"There was no agreement that the original deposit would be returned upon request."

How does this case differ from one in which a woman tells a man she is on the pill when she isn't?

* "Wonky" is a well-accepted term in the economic analysis of law.
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