This Essay reviews Nathan Oman’s recent book, The Dignity of Commerce. The book is compelling, and it makes an important and original contribution to contract theory – a contribution that insightfully shows how markets matter. Yet, in the course of developing a market centered justification for contract law, The Dignity of Commerce also downplays the significance of consent and promissory morality. In both cases, the book’s argument is problematic, but this Essay will address questions of promissory morality. Oman contends that promise based accounts struggle with contract law’s bilateralism and with its private standing doctrine. However, promissory morality is a very good fit for these features of contract law if, instead of focusing on a promisor’s moral obligations, we focus on a promisee’s enforcement rights. When we look to the morality of enforcement, contract law and promissory morality are a close match. And, even if promissory morality cannot fully explain contract law, it can then be an important component of a successful explanation.
Gold, Andrew S, Contract, Promise, and the Right of Redress (January 28, 2018). Forthcoming, 9 William and Mary Business Law Review.