Voluntary obligations and the scope of the law of contract

Legal Theory

Volumn 2, Issue 4, 1996, Pages 325-357

  Penner, J E ^a  

^a Elliott Jaques Building   (United Kingdom)

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EID: 84920725554     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325200000562     Document Type: Article

References (39)

1. See Raz, 95 HARV. L. REV. note 1, at 933-38.
2. See, for rxamplf, S. Stoljar, Promise, Expectation, and Agreement, 47 CAMBRIDGE L.J. 193, 198-200 (1988); Atiyah, PROMISES, MORALS, AND LAW, HARV. L. REV. note 1, at 157-60. Both Raz and A. de Moor convincingly refute the notion that a promise must be wanted; Raz, Promises and Obligations, HARV. L. REV. note 1, at 213-14; A. de Moor, Are Contracts Promises? in OXFORD ESSAYS IN JURISPRUDENCE, THIRD SERIES 103, 111-12 (J. Eekclaar &J. Bel! eds., 1987). In general, one wants both gifts and promises for either or both of two kinds of reasons: (1) because one wants the substance of what is given or promised, or (2) because one wants the normative situation to change, i.e., the property in the gift to pass, or the promisor to be under an obligation. Likewise, one may refuse a gift or promise because of its substance or because one does not want the normative situation to change. It is therefore incorrect to regard as analytic of the notion of ghing or promising that the recipient wants the substance of what is given or promised, since the recipient might easily be more interested, or only interested, in the normative consequences.
3. Cf. W.T. Murphy and S. Rubens. UNDERSTANDING PROPERTY LAW 163 (2d ed. 1993).
4. Although they arc one-way transfers of value, they should, at a second-order level, enhance the value of the promisor's or donor's life, because he values the enhancement of the recipient's life, which should result from the gift or the performance of the promise.
5. This latter formulation, a decision about “what the normative significance of their actions will be,” covers the case of the simultaneous exchange of property; only with difficulty is one able to treat such an exchange as creating executory obligations about how the parties “will be bound to act” in the future. See, e.g., B. Nicholas, AN INTRODUCTION TO ROMAN LAW (real contracts) (1962) andJ.E. Penner, THE IDEA OF PROPERTYIN LAW (in press 1997).
6. For a different view that the bilateral character of agreements is a crucial focus for a theory of contract, see de Moor, Are Contracts Promises? THE IDEA OF PROPERTYIN LAW note 6, at 104.
7. For a different view that the bilateral character of agreements is a crucial focus for a theory of contract note 8.
8. Penner, For a different view that the bilateral character of agreements is a crucial focus for a theory of contract note note 9, ch. 7.
9. Of course, we sometimes use the word “promise” to affirm the truth of what we say, as in “I promise you that this car gets 30 miles to the gallon.” Overwhelmingly, however, promises are regarded in law and philosophy as creating obligations, and obligations arc duties that guide our (future) behavior. See Raz, Promises and Obligations, For a different view that the bilateral character of agreements is a crucial focus for a theory of contract note note 9 note 1, at 211.
10. It is not correct to say that upon sale, the seller “promises” or obliges himself to regard the property he gave in exchange as no longer his, for the law, not the contract, establishes the duty of a nonowner not to interfere with the property of others. Following the sale, the seller is in no different position from anyone else as regards his rights to the goods he sold. The agreement of sale puts him in this normative position; he does not orate the legal norms which characterize this position by contract. For a similar view, see A-L. Corbin, CORING ON CONTRACTS (One-Volume Edition) (§ 4 1952).
11. In order to apply the doctrine of consideration to agreements of barter or instantaneous sale transactions, I interpret the doctrine of consideration to be broader than Treitel's statement of it: “It is quite irrelevant that the seller has made a good bargain and so gets a benefit from the performance of the contract. What the law is concerned with is the consideration for a promise-not the consideration for a contract.'’ G.H. Treitel, THE LAW OF CONTRACT 53 (7lh ed. 1987). The fact that a barter or sale is instantaneous does not imply that there are no terms to the agreement which constitute representations or warranties regarding the fitness of the goods exchanged, or indeed that the transferor has good title or power to sell them. The validity of these warranties or representations as regards their founding a legal action would appear to depend upon the contract being made for good consideration, as Treitel's discussion of past consideration suggests; Id. at 61-62. But there are no promises here.
12. He docs, however, recognize the possibility of the alternative view: “If contract should be defined as consisting of the operative acts of offer and acceptance by the parties, a bartering transaction would be a contract.” Corbin. order to apply the doctrine of consideration to agreements of barter or instantaneous sale transactions, I interpret the doctrine of consideration to be broader than Treitel's statement of it: “It is quite irrelevant that the seller has made a good bargain and so gets a benefit from the performance of the contract. note 14, at § 4.
13. At, § 21.
14. K. Llewellyn, WTuit Ihicr Contract-An Essay in Perspective, 40 YALE L. J. 701, 717 (1931): P.S. Atiyah, ESSAYS ON CONTRACT, 1 (19S6).
15. By various steps, the Roman law eventually largely recognized that any agreement executed on one side, or any written agreement, was a legally enforceable contracL Nicholas, su}na note 9, at 189-91,194-96. The Roman law never made the final step of unifying its law of contracts into one law of contract based on the premiss that any agreement that was seriously formed was legally binding, but the Civilian lawyers did so. Nicholas, WTuit Ihicr Contract-An Essay in Perspective note 9, at 205-06.
16. Id. at 159.
17. Id at 159-61.
18. Id at 162.
19. Id at 164.
20. (1854)23LJ.Exch. 179.
21. A.W.B. Simpson, Innovation in Mtieteenth-Century Contract Law, 91 L.Q.R. 247-78, 257fT. (1975).
22. See, e.g., Trcitcl, Innovation in Mtieteenth-Century Contract Law note 15. at 55; Corbin, Innovation in Mtieteenth-Century Contract Law note 14, at 142,205-08. See also G.H. Treitel. Consideration: A Critical Analysis of ‘Ihvfessor Atiyah's Fundamental Restatement, 50 AUSTRALIAN LJ. 439-19,442 (197G).
23. j. Raz. On the Saturr of Mghtt, 93 MIND 194,203 (1984).
24. Srr. e.g. Chitty on Contracts, (27th cd. § 24-001,1994
25. A law of obligations that took into account this typology might perhaps appeal to Atiyah, who has insisted for some time that we are badly served by the present divisions between tort and contract. Atiyah, Srr. e.g. Chitty on Contracts note 1. A more recent version of this essay, concluding with a reply to his critics, is found in Ch. 2 of Atiyah, Srr. e.g. Chitty on Contracts note 18.
26. According to its actual terms, the requirement is bogus. As Hedley convincingly argues, the “requirement” is actually a rule of law which keeps the courts from enforcing executory domestic agreements and agreements not made at arm's length, in other words, contracts likely to reflect a significant underlying constitutive relationship. S. Hedley, Keeping Contract in Its Plan*-Balfour v. Balfour and the Enforceability of Informal Agreements, 5 OXFORD J. LEGAL STUD. 301 (1985).
27. I.R. Macneil, Contracts: Adjustment ofljong-Tenn Economic Relations Under Classical, Neoclassical, and Relational Contract Law, 72 Nw. U. L. REV. 851 (1978). For an economic perspective on relational contracts, seeC]. Goctz and R.E. Scott, Ihinriples of Relational Contracts, 67 VA L. REV. 1089 (1981). See also S. Deakin ct ah. Trust” or IMW? Tmrnrds an Integrated Theory of Contractual Relations Between Firms, 21 J. L. &SOCY329 (1994).
28. If these are unincorporated associations at all; see Conservative and Unionist Central Office v. nurrcll [1982] 1 WLR522.
29. SwPenncr, Basic Obligations, in Peter Birks, ed., EXTENDING OBLIGATIONS (in press 1997
30. ButseeTrehcl, supranolc 15, at 121.
31. L.L. Fuller and W.R. Perdue, Tlie Itrtiancr Infant in Contract Damages: 1.46 YAIX I-J. 52, 5G-57 (193G).
32. A.T. Kronman, A New Oiampionfor the Will Theory, 91 YAIX L. J. 404, 409 (1981
33. Id. at 411.
34. Raz, 95 IIARV. L. REV. Id. note 1, at 937-38.
35. Fuller and Perdue, IIARV. L. REV. note 44, at 59-63.
36. Raz, 95 IlARV. L. REV. IIARV. L. REV. note 44 note 1, at 937.
37. Raz, 95 I IARV. U REV. IlARV. L. REV. note 1, at 937.
38. It might provide valuable negative guidance, i.e., the broken agreement might indicate one way not to go about meeting the constitutive obligation.
39. Atiyah, It might provide valuable negative guidance note 1, especially at 200-09.