Not surprisingly, the first Restatement of Property reflected this tension by adopting two seemingly conflicting definitions of actions that could constitute voluntary waste. (20) First, in section 138 the Restatement declares that a life tenant has a duty not to diminish the "market value" of the subsequent interests.
These two conflicting Restatement rules on voluntary waste can be reconciled, however, by focusing on changed circumstances.
(37) In sum, this initial foray into the doctrine of waste in the context of life estates reveals that changing circumstances are at least a significant factor, if not the crucial one, in explaining why courts and legal commentators seek more flexible, muddier standards for deciding what is actionable voluntary waste.
Turning now to voluntary waste in the context of leases, we continue to see the impact of changed conditions on the formulation of waste standards but we also become more aware of the role of private ordering in responding to ambiguity in default waste standards.
If we take a broad view of waste at this point, we see that in relationships involving possessory and future interest holders that are either finite in duration or originate in voluntary contractual agreements (e.g., leases), as opposed to involuntary and more temporally indefinite grants made by testators or donors (e.g., life estates), courts tend to employ relatively strict and crystalline rules governing voluntary waste. (53) In addition, the rigidity of these judicial rules seems to induce private ordering as parties frequently negate common law or statutory default rules on waste by adopting their own contractual terms.
Curiously, though, when Purdy actually explains how American courts changed their understanding of voluntary waste in the first several decades of the nineteenth century, he turns to theories concerning the development of default rules in contracts.
At the same time, though, it adopted a new more flexible "permanent injury to the inheritance" standard as the metric for determining if voluntary waste has occurred.