This Article excavates unfamiliar stories about contracts doctrine and the violence of slavery. One such story begins with six-year-old Martha, whose bill of sale warranted her “to be sound.” When Martha’s purchaser found her unable to perform the “duties that might be reasonably assigned to a child,” however, he sued for breach of warranty, alleging that Martha was “absolutely an idiot, and of no value.” In response, Martha’s vendor claimed that she was in fact sound and that her “dullness” was merely the result of “having been badly treated.”

Cases like Martha’s—decided in Tennessee and published as Belew v. Clark—were common in the antebellum South, as purchasers of slaves routinely sued vendors for breach of warranty. These warranties drew courts into the very heart of slavery’s violence, where they were called upon to answer questions about how much violence was necessary and acceptable for the slave regime to work. Questions such as: How much violence did an enslaved child need to endure before her injuries constituted a breach of warranty? Through an analysis of 152 appellate cases heard in five Southern states (Mississippi, South Carolina, Tennessee, Texas, and Virginia), this Article finds that warranties of soundness were one of the few sites where the law intervened in the violence of slavery. By changing the risks and incentives associated with slaveowners’ violence, warranties of soundness also shaped the very forms that said violence took.

An Appendix presenting the dataset of 152 appellate cases analyzed in the Article is available here. At the Author’s request, a combined PDF of the Article and Appendix is available here.

* Associate Professor, New York University School of Law. This paper benefitted from feedback and conversations with Deborah Archer, José Argueta Funes, Tom Baker, Aditi Bagchi, Paulo Barrozo, Alexis Broderick, Rick Brooks, Guy Charles, Brad Clark, Felipe Cole, Hanoch Dagan, Adrienne Davis, Kevin Davis, Daniel Francis, Oren Bar Gill, Clay Gillette, Annette Gordon-Reed, Ariela Gross, Justin Simard, Sarah Seo, Emma Kaufman, Lewis Kornhauser, Sophia Lee, Ethan Leib, Ken Mack, Elise Maizel, Daniel Markovits, Florencia Marotta-Wurgler, Tamara Matheson-Holmgren, Sophia Moreau, Melissa Murray, Shaun Ossei-Owusu, Allison Page, Claire Priest, Aziz Rana, Kate Redburn, Dorothy Roberts, Kelly Rohe, Nick Sage, Prince Saprai, John Witt, and the participants of Berkeley Law’s Contract Theory Works in Progress Workshop and the Boston College Law Junior Faculty Roundtable.