The Divergence of Contract and Promise

Abstract

In U.S. law, a contract is described as a legally enforceable promise. So to make a contract, one must make a promise. The legal norms regulating these promises diverge in substance from the moral norms that apply to them. This divergence raises questions about how the moral agent is to navigate both the legal and moral systems. This Article provides a new framework to evaluate the divergence between legal norms and moral norms generally and applies it to the case of contracts and promises. It introduces and defends an approach to the relationship between morality and law that adopts the perspective of moral agents subject to both sets of norms and argues that the law should accommodate the needs of moral agency. Although the law should not aim to enforce interpersonal morality as such, the law's content should be compatible with the conditions necessary for moral agency to flourish. Some aspects of contract not only fail to support the morally decent person, but also contribute to a legal and social culture that is difficult for the morally decent person to accept. Indeed, U.S. contract law may sometimes make it harder for the morally decent person to behave decently. INTRODUCTION In U.S. law, a contract is described as a legally enforceable promise. So to make a contract, one must make a promise. One is thereby simultaneously subject to two sets of norms--legal and moral. As I argue, the legal norms regulating these promises diverge in substance from the moral norms that apply to them. This divergence raises questions about how the moral agent is to navigate both the legal and moral systems. In this Article, I provide a new framework to evaluate the divergence between legal norms and moral norms generally and apply it to the case of contracts and promises. By claiming that contract diverges from promise, I mean that although the legal doctrines of contract associate legal obligations with morally binding promises, the contents of the legal obligations and the legal significance of their breach do not correspond to the moral obligations and the moral significance of their breach. (1) For instance, the moral rules of promise typically require that one keep a unilateral promise, even if nothing is received in exchange. By contrast, contract law only regards as enforceable promises that are exchanged for something or on which the promisee has reasonably relied to her detriment. When breach occurs, the legal doctrine of mitigation, unlike morality, places the burden on the promisee to make positive efforts to find alternative providers instead of presumptively locating that burden fully on the breaching promisor. Morality classifies intentional promissory breach as a wrong that, in addition to requiring compensation, may merit punitive reactions, albeit sometimes minor ones; these may include proportionate expressions of reprobation, distrust, and self-inflicted reproofs, such as guilt. Contract law's stance on the wrongfulness of promissory breach is equivocal at best, manifested most clearly by its general prohibition of punitive damages. To analyze this substantive divergence between legal and moral norms, I introduce and defend an approach to the relationship between morality and law that adopts the perspective of moral agents subject to both sets of norms and argue that the law should accommodate the needs of moral agency. Although the law should not aim to enforce interpersonal morality as such, the law's content should be compatible with the conditions necessary for moral agency to flourish. Some aspects of U.S. contract law not only fail to support the morally decent person, but also contribute to a legal and social culture that is difficult for the morally decent person to accept. Indeed, U.S. contract law may sometimes make it harder for the morally decent person to behave decently. For some, the divergence between contract and morality calls for a direct condemnation of contract law's content. …

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