The Nature of Contractual Obligation

Extract

In his ‘Common Law’ Mr. Justice Holmes expressed the view (see pp. 300, 301), that a contract is properly to be regarded as the taking of a risk creating a liability to pay damages in a certain event. ‘The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass.’ In the Pollock-Holmes'Letters the matter is frequently discussed, and there are various passages from which we can get his views in detail (see vol. i, pp. 21, 119, 177; vol. ii, pp. 55, 200, 234). His position seems to be that liability in Contract is completely analogous to that in Tort. If you commit a tort you are liable to pay damages. If you commit a contract you are liable to pay damages, unless something happens, i.e., performance, over which you may or may not have control (i, 177). It is a conditional liability to pay damages. There is, he holds, no reason to speak of ‘promise’ in the matter at all, in particular, the performance and the payment of damages are not to be thought of as alternative obligations (this in answer to an objection by Pollock).