‘Pacta Sunt Servanda': Contract Breach and Contract Enforcement in Prostitution

The bulk of the social-scientific attention paid to the regulatory aspects of prostitution shows signs of a rigid judicial centralism. Usually one focuses on formal laws regulating the position of commercial sex. This means that the discussion of criminalization or liberalization of sex work gets most of the attention. However, there is more law and regulation concerned with sex work than just the formal aspects.

One important question is how relations between sex workers and clients are governed by contracts. Prostitution implies that people are engaged in commercial transactions where physical sexual services are exchanged for money. Because the relationship between a sex worker and his or her client is organized as an exchange, it necessitates a contract. These contracts, however, are virtually always of an incomplete nature. For one thing, written contracts are absent. Also, the incompleteness is strengthened because parties do not even orally agree upon essential aspects of the contract. Usually there is no more than a vague agreement about the price and the services provided. Misunderstandings and disagreements therefore occur frequently. Quite often these disagreements may increase the risk of violence used.

This contribution is built on a quite unique dataset documenting (more than 35,000) exchanges in commercial sexual encounters in the Low Countries (the Netherlands and Belgium). The analysis builds on a quantitative analysis of the causal factors behind these breaches of incomplete contracts. Privileged hypothetical factors are the private and public order institutions allowing for contract enforcement, unilateral enforcing power of contracts, reputation mechanisms and socialization. Estimation is performed with multilevel logit analyses, both random effects Bayesian estimations and fixed-effects regressions.