Separating Contract and Promise

Contract has been conceptualized as a species of promise. This prevailing approach obscures essential differences between legally binding and everyday, or “private,” promises. The moral character of a private promise depends on the fact that it is not only freely made but also freely kept. Contractual promises are not intended to have and do not have this voluntary character. In making a private promise, a promisor creates a sufficient reason to perform the content of her promise: the very fact of her promise. To the extent she simultaneously creates a second sufficient reason—liability in the case of breach—the first reason does no work, or there is no way to confirm the independent sufficiency of the first reason. Similarly, in the private practice of promise, the fact of promise is itself the ground for the promisee’s belief that the promisor will perform. To the extent the promisee is given independent assurance of performance, she cannot objectively rely on the fact of promise alone. The very act of contracting removes one from the moral world of private promise. By better appreciating the difference between contract and private promise, we can better mark the appropriate domain of contract law. Where overlap with the domain of private promise is justified, as in the regulation of marriage, appreciating the tension between private and legal promise may help explain why the extension of contract has been difficult to achieve in practice. It also suggests that we can mitigate the conflict between private and legal promise by minimizing their overlap. This can be done by limiting the remedies for breach to ones that the private promise did not contemplate. In other contexts, the distinction between private and legal promise calls for the expansion of the domain of contract. For example, some promises made in the context of radical inequality in power, as in most employment circumstances, are located outside the law. To the extent we see the depersonalization of the employment relationship as an important achievement of the liberal market economy, the account here clarifies one task of contract law: the displacement of private promise in the realm of employment. I. THE SEPARATE DOMAINS OF CONTRACT AND PRIVATE PROMISE 715 A. The Character of Private Promising 715 B. The Character of Contract 727 C. Objections to the Divergence of Contract and Private Promise 732 II. REGULATING PRIVATE PROMISE 739 A. The Scope of Enforceable Promises 740 B. Remedies for Breach of Private Promise 745 III. FALSE PRIVATE PROMISE AND THE EXPANSION OF CONTRACT 750 IV. CONCLUSION 758 Contract has been conceptualized as a species of promise. Most famously, Charles Fried has argued that contracts should be enforced because they are promises. More recently, Daniel Markovits has defended a theory of contract that takes contract to be a special case of * Assistant Professor of Law, University of Pennsylvania Law School; J.D. 2003, Yale Law School; M.Sc. 2000, Oxford University; A.B. 1999, Harvard University. Many thanks to Jules Coleman, Scott Shapiro, and others who provided feedback at the Yale-Stanford Junior Faculty Forum. I am also grateful to Randy Barnett, Barbara Fried, Gregory Klass, Ethan Leib, Nate Oman, Daniel Markovits, Seana Shiffrin, and participants in workshops at Georgetown Law Center, William and Mary Law School and the XXIII World Congress of Philosophy of Law and Social Philosophy. 1. See generally CHARLES FRIED, CONTRACT AS PROMISE (1981). 710 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 38:709 promise, and Seana Shiffrin has suggested ways in which the obligations of contract and promise diverge, a problem only because those subject to contractual obligations are ostensibly also subject to the norms of promise. As Shiffrin and others have pointed out, “U.S. contract law represents that a contract is an enforceable promise” and “[t]he language of promises, promisees, and promisors saturates contract law” and its surrounding literature. Treating contractual promise as a kind of promise highlights certain important aspects of contracting, including the communication of a commitment to future action and the delegation of partial authority over future conduct to another person. Contract and promise do not uniquely share those features; one might communicate a commitment to future action that is not intended to benefit the person to whom the commitment is communicated, and the communication might not amount to either contract or promise. Similarly, one might delegate authority over some future decision upward or downward without it amounting to either contract or promise. Contract and promise also differ in fundamental ways that I will explore in this Article. But it is clear that contract and promise on their faces seem to belong to some family, even if each simultaneously has equally close or closer relations with other kinds of acts. Perhaps because of their familial relations, the similarities between contract and promise are too easily assumed and often overemphasized. The result has been to obscure essential differences between legally binding and everyday, or what I will call “private,” promises. The moral character of a private promise depends on the fact that it is not only freely made but also freely kept. Most contractual promises are not intended to have and (by definition) do not have this voluntary character. 2. See Daniel Markovits, Contract and Collaboration, 113 YALE L.J. 1417, 1448 (2004) (arguing that “[c]ontract presents a special case of promise” and that contract is a “class of promises”). 3. See generally Seana Valentine Shiffrin, The Divergence of Contract and Promise, 120 HARV. L. REV. 708 (2007). 4. Id. at 721. 5. Dori Kimel has made a related point. He has suggested that the keeping of promises and reliance on promises communicates trust and that enforceability interferes with