Gregory Klass, ‘Promise, Agreement, Contract’

ABSTRACT
It is natural to wonder about contract law’s relationship to the morality of promises and agreements. This Chapter distinguishes two ways to conceive of that relationship. First, parties’ agreement-based moral obligations might figure into the explanation of contract law – into an account of its functions or justifications. Contract law might serve to enforce parties’ first-order performance obligations, to enforce second-order remedial obligations, to support the culture of making and keeping agreements more generally, or at least to do no harm to that culture or to people’s ability to act morally. Second, contract can be understood as the legal analog to promise. Both contract and promise enable people to undertake new obligations to one another when they wish. Each is a type of normative power, the one legal, the other moral. The Chapter concludes by arguing that these two ways of thinking about contract law are not mutually exclusive. Contract law both imposes on parties to exchange agreements a legal obligation to perform for reasons independent of the parties’ possible contractual intent, and confers on them the power to undertake that legal obligation when they so intend because they so intend.

Klass, Gregory, Promise, Agreement, Contract (January 24, 2020). Forthcoming, Research Handbook on Private Law Theories (Hanoch Dagan and Benjamin Zipursky, eds, 2020).

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