It is not the contract "infringing". It is each party voluntarily agreeing to certain constraints. Either party can break the contract at will, but will incur the penalties agreed upon for breach. The smokers are under no obligation to remain living in the HOA. They can pack up their ciggies, cabbage and guns and sell out any time.
If they don't like the contractual constraints, they should not have signed them. It is precisely for this type of reason that I will not be in an HOA: that the terms of the contract are not set, but subject to constant revision without recourse to removing your property from the HOA. To me, that is buying a pig in a poke.
Yep. bashing libertarians is yet another 'community issue'.
What bashing? I'm saying that a valid contract between parties that is not fraudulent or coerced is a core libertarian principle. It isn't up to me or John Q. Public to get the smokers out of a bad deal.
Can a valid contract infringe upon an inalienable right? [could the Association ban cooking cabbage? Or worse yet gun ownership?]
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Lex:
It is not the contract "infringing". It is each party voluntarily agreeing to certain constraints.
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The smokers did not agree that the Association had the power to prohibit smoking.
ASU OGC: Briefing Papers | Contracting Basics
Address:http://www.asu.edu/counsel/brief/contractbasics.html
Is the contract valid, void, voidable or unenforceable?
"-- 4. An unenforceable contract is generally a valid contract but is not enforced because of public policy or law. --"
In the case at hand, a smoking ban can not enforced because of public policy or law stating that people shall not be deprived of life, liberty or property without due process of law.
An Association prohibition on smoking infringes on the owners property rights, a right upon which they never 'voluntarily agreed to constraints'. - Due process was also violated.
If the terms of a contract are not set, but subject to constant revision without recourse, the contract is invalid, in my [constitutional contracting] book.
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Contracting Basics
Address:http://www.asu.edu/counsel/brief/contractbasics.html
F. Legality of the contract matter--the subject of the contract must be legally permissible and not against public policy.
II. Barriers to Formation of a Contract
A. Mutual mistake or ambiguity with respect to material terms.
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"-- subject to constant revision without recourse --" -equals- "-- ambiguity with respect to material terms --".