I agree with you, but that does not lead inevitably to specific performance. In fact, specific performance is impossible in this case. The guy was asking for consensual sex (probably, the GFE). If she resists, he is getting rape instead of consensual sex. Not the same thing at all, therefore not specific performance.
I'll agree that the default is GFE, but certainly it could be that the guy wanted PSE instead. This would be a "meeting of the minds problem" if that's not what she thought she was agreeing to. He might have also been thinking of "rough sex" -- which can be consensual, although such cases might not necessarily be obvious to an outside observer.
If it
was rough sex that was bargained for the lack of clear consent on her part might be acceptable, and if it wasn't there certainly isn't an obvious reason that she could not engage in what appears to be consensual sex (it shouldn't surprise you that many guys can't tell if a woman is really into it -- women have been even known to fake orgasms).
One option might be to let the guy name a secondary option in lieu of the sex,
e.g., a Kg of gold within 180 terrestrial days, and let her decide which to supply. Since she's not acting in good faith, the value of the meal (which might, under other circumstances, be available for a few mg. of gold) is irrelevant -- she must compensate for the value of what she agreed to provide.
Let me take a second here, to possibly offend you and software engineers everywhere. Engineers of all types, like mathematical symmetry. It is the way their heads are wired. Many, also have a very stunted level of understanding of human relationships and empathy. Think, Sheldon, on "The Big Bang Theory."
Specific performance has an obvious symmetry, while damages do not. However, most people's empathy and abhorrence of rape, makes, so called, "specific performance," a social non-starter in this case.
I gladly admit to placing an extremely high value on symmetry; when evaluating such situations, I automatically invoke the Principle of Symmetry and Point of View Invariance as guides to a solution.
However, I do object to the question of empathy; in this case the empathy should lie with the man, not the woman. By getting the food without the apparent intent to fulfill her end of the bargain, she is attempting theft through fraud. She may subsequently claim some cultural objection to the sex, but she forfeited that position by agreeing in the first place. There is also a significant probability, based on the evidence, that she offered it herself.
While I can (and often do) act empathetically toward those who have failed to complete contracts with
me, I have no such right to do so for someone else. That would make me an accomplice to theft. This is the road to modern Liberalism.
Are either of these necessarily of value? Case law is far overrated in my view (I can see the underlying reasoning behind prior cases to be of some merit in many cases, but there is nothing magical about that reasoning or the conclusions drawn from it)...
It does thing exceedingly well. It adds a reasonably high degree of predictability to "law" or whatever you want to call it. When application is patently unfair in a given case, a judge can always "distinguish" from the case law. Now, we have new precedent that refines the old precedent. A software engineer might see that a recursive process, yielding successively closer approximations of the correct legal thinking.
I contend it is exceeding poor. There is an implicit assumption that an initial precedent was approximately correct, when it might not have any such legitimacy. Now, the
reasoning behind that precedent may be of value, and should be the real basis for its use; however without the underlying reasoning being available, and that reasoning being open to criticism at any subsequent point, such precedents become a wellspring of error. Software Engineers would see this as a legal analog to "software rot".
... and cultural indicators are simply a simplification of some aggregation of individual views. Both have about as much significance as saying "but we've always done it that way before!"
And you don't see that as a good thing? Just because someone says, "but we've always done it that way before!" doesn't mean we cannot change it, if necessary. It does tell us, "Hey, you'd better think long and hard before you go off on a new legal tangent. There were good reasons that 'rule' exists."
There may or may not be a good reason. If there was a "good" reason when first proposed, the reasons for that "goodness" may no longer apply, or its import may have diminished. Only by periodically going back to first principles and challenging each assumption made in the reasoning from day one to today can its reliability be assured.
Lawyers, who are often rather lazy (as are many Software Engineers, I will grant), tend over time to drop or forget the reasoning, and hence eliminate any real value the precedents may have. Better to forgo the precedents altogether and rely solely upon the reasoning itself.
I'm of the opinion that one's (uncoerced) word is binding. The fact that a lot of folks don't think that such a deal should be made including "sex" is irrelevant -- if she felt that way she should have rejected the deal up front.
Again, no argument there, but she did make the deal. We are only arguing about appropriate consequences. The guy did bargain for rape, he should not get it. He was looking for the GFE and he cannot get that either. Damages are his only option as far as I can see. If I were sitting in the judge's seat, the guy would not be allow to rape the woman. And again, YMMV.
I think you mean "
didn't bargain for rape" above. That may be true; however, if he will accept the sex under some measure of coercion as payment, that's all that really matters at this point. The woman is free to find and propose alternatives, but at this point she has no real bargaining position. I could add that should she resist, she is guilty of committing a tort against the man. Frankly, I think that calling it "rape" is an attempt to engage an emotional response rather than a rational one -- not that she would be adverse to doing so, given her prior history. I'm a bit disappointed in you, Sandy, by raising this, given that you have already indicated that "sex is not the issue here."
One last thought for the day. There is a Latin expression in law that I like, "Damnum absque injuria." Roughly, it means, "Some injuries have no legal remedy." This just might be one of those cases.
I don't think it is. If she were
unable to perform the service, or in another case someone's death were caused, there may not be a legal remedy. I'm not convinced that is the case here.