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Kraus on Contract & Promise

By Lawrence Solum

Jody S. Kraus (University of Virginia School of Law) has posted The Correspondence of Contract and Promise (Columbia Law Review, Vol. 109, No. 7, 2009) on SSRN. Here is the abstract:

Correspondence accounts of the relationship between contract and promise hold either that contract law is justified to the extent it enforces a corresponding moral responsibility for a promise or unjustified to the extent it undermines promissory morality by refusing to enforce a corresponding moral responsibility for a promise. In this Article, I claim that contract scholars have mistakenly presumed that they can assess the correspondence between contract and promise without first providing a theory of self-imposed moral responsibility that explains and justifies the promise principle. I argue that any plausible theory of self-imposed moral responsibility is inconsistent with a strong correspondence account, which would impose legal liability for all promises, including promises intended not to be legally enforceable. To illustrate the dependence of correspondence accounts of contract law on a theory of self-imposed moral responsibility, I demonstrate how a ?personal sovereignty? account of individual autonomy - one of the most familiar and intuitive theories of self-imposed moral responsibility - explains how and why, contrary to existing correspondence theories, promissory responsibility corresponds to the objective theory of intent. I then use the personal sovereignty account to demonstrate why a theory of self-imposed moral responsibility is necessary to determine whether contract remedies correspond to the remedial moral rights and duties that attach to violations of promissory responsibilities. I argue that the personal sovereignty account explains how and why promissory morality corresponds to most remedial contract doctrines, including the bar against mandatory punitive damages, the foreseeability limitation on consequential damages, the mitigation doctrine, and expectation damages, the paradigm example of a contract doctrine alleged to conflict with promissory morality. Finally, I argue that personal sovereignty also explains and justifies the doctrines of consideration and promissory estoppel. Correspondence theorists, therefore, can defend their critiques of contract law only by rejecting the personal sovereignty theory of self-imposed moral responsibility, defending an alternative theory, and explaining why any resulting divergence between contract law and its requirements is objectionable. Absent such a theory, correspondence accounts of contract law have no foundation.

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Full post as published by Legal Theory Blog on December 11, 2009 (boomark / email).