Private Law Theory

ABSTRACT
There is one proposition about the nature of contracts that most lawyers and contract law scholars will take as evidently true: a contract is, at least in part, constituted by a promise or group of promises. This basic dogma about the nature of contract – one taught in law schools, and widely endorsed by scholars, as well as by the Second Restatement of Contracts – is the ‘promissory theory’ of contract. Contract theorists who defend versions of the promissory theory often disagree about some important aspects of contract law’s structure and justification, but still hold that entering into a contract necessarily consists, at least in part, in making a promise: promising is always necessary for contracting, even if often not sufficient. In this Article, I argue against the promissory theory and offer an alternative account of contract.

Molina, Crescente, Contracting Without Promising (October 11, 2024), University of Toronto Law Journal (forthcoming).