Brian Bix, ‘The Moral Obligation to Perform Contracts’

ABSTRACT
There is a well-established literature about whether, when, or to what extent citizens have a moral obligation to obey the law. That discussion looks at various possible justifications for a prima facie moral obligation to obey; the best-known proffered justifications range across argument based on consequences, consent, gratitude, fair play/reciprocity, and the role of government in distributing benefits and burdens across society. The literature regarding the moral obligation to obey particular categories of obligations is significantly less well developed. The present article considers whether and when there might be a moral obligation to perform one’s contractual obligations. Part of the complexity of the analysis will come from the fact that these questions arise in particular social and relational contexts, and the background justice or injustice seems relevant to the existence of a moral obligation to keep a contract, or its absence.

Ultimately, it seems likely that one’s obligation to keep a contract will vary with its circumstances. Injustice in society, in the underlying relationship, in the negotiation of the agreement, or in the agreement’s terms would work against any such moral obligation. Thus, the starting point of discussions about the moral obligation to keep contracts varies from the starting point of discussions about the moral obligation to obey the law. On the latter topic, for a long time it was assumed that, at least for generally just legal systems, a moral obligation applied equally to all laws, though one might then argue about the defeasibility of that obligation in particular cases. With contracts, people seem less inclined to assume that all contracts bind equally (or, as they say regarding legal rules and commands, in a ‘content-independent way’).

There remain questions of what the content of the obligation to keep one’s contract would be, assuming that there is one. Most of us would assume that it is an obligation actually to perform (unless there are good reasons not to), but some would argue merely for an obligation to perform or pay damages. Though the prompt payment of damages – without disputing the breach, claiming a lower amount of damages, or threatening protracted and expensive litigation – would already be a significant advance on current common commercial practices.

Bix, Brian, The Moral Obligation to Perform Contracts (May 7, 2021).

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