This short Essay examines the assurance theory of contract, originally developed by TM Scanlon and recently revived and revised by Emmanuel Voyiakis. Scanlon’s duty-based account of contract properly highlights the intimate connection between contract and the value of choice. In turn, Voyiakis’ revision implies that contract’s normative underpinning must also serve as the foundation for its distinct requirements for justice. Notwithstanding these virtues, I criticize assurance theory in both its versions, arguing that it fails to capture the essence of contract. That is, contract is first and foremost power-conferring, not duty-imposing. This failure, I further claim, undermines assurance theory’s ability to properly account for the robustness and the foundation of contract-based obligations; it also obscures both the premise and the challenge of contract law’s justice-based rules.
Dagan, Hanoch, The Value of Choice and the Justice of Contract (October 5, 2018). Jurisprudence (forthcoming 2019).