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Published online by Cambridge University Press: 02 January 2018
In 1919, Balfour v Balfour gave birth to the intention to create legal relations doctrine in contract law. In a dispute between a husband and wife, Lord Justice Atkin said that domestic commitments were not within the jurisdiction of contract law. It has had profound implications for how contract cases are decided, and how contract law is understood. In this paper, I focus on the radical implications of this doctrine for contract theory. Charles Fried said famously that contracts are promises. But if contracts are promises, why is it that contract law requires not only promise, but after Balfour a further intention, that the promise be legally enforceable? That tension between the promise theory of contract and the intention to create legal relations doctrine has led some to doubt the place of promise in contract. Dori Kimel, for example, says that the doctrine is a portal between the realm of promise, where people are attached, and the realm of contract, where detachment prevails. But such dichotomies are misleading. Contract is not separate from promise. It is one of the ways that promise fulfils its function of giving meaning and shape to human relationships.
This paper was originally presented as a response to Michael Freeman's important critique of Balfour v Balfour, on the occasion of a Current Legal Issues Colloquium held in his honour at UCL (2013). Since then the aims of the paper have grown, and different iterations have been presented at the LSE Private Law Discussion Group (2014), the UCL Private Law Group Workshop (2015), and the Cambridge Private Law Centre Work in Progress Seminar (2015). Thank you to all of the participants on these occasions, and to the two anonymous referees from this journal, for invaluable advice and feedback, which has led to important revisions. I would like to thank in particular for their comments: Alison Diduck, Charles Fried, Amy Goymour, Greg Klass, George Letsas, Nick McBride, Ben McFarlane, Joanna Miles, Chris Mills, Charles Mitchell, Jonathan Morgan, Rob Stevens, Radosveta Vassileva, Emmanuel Voyiakis, Stephen Watterson, Charlie Webb, and Fred Wilmot-Smith. I would like to reserve special mention for Helen Reece, who was in the audience when I presented the paper at the LSE. She has since sadly passed away. Helen disagreed trenchantly with my interpretation of the nature and aims of the feminist critique of Balfour. On the occasion, I was reluctant to concede ground, but she embedded doubts which grew and led me to completely re-write the paper. I am sorry I did not get to thank her personally. She managed to combine great intellectual achievement with true kindness and generosity of spirit. She will be sorely missed. Thank you to Simon Palmer and Stuart Sanders for their excellent research assistance. The usual caveat applies.
1. Reflected in this recent collection of essays in the field: G Klass, G Letsas and P Saprai (eds) Philosophical Foundations of Contract Law (Oxford: Oxford University Press, 2014).
2. It took place on the pages of the Harvard Law Review: HLA Hart ‘Positivism and the separation of law and morals’ (1958) 71 Harvard Law Review 593; L Fuller ‘Positivism and fidelity to law – a reply to Professor Hart’ (1958) 71 Harvard Law Review 630.
3. There are complicated reasons for this, which I won't speculate on here. Not least of them though must be that some of the leading players in this drama have now left the stage.
4. S Shiffrin ‘The divergence of contract and promise’ (2007) 120 Harvard Law Review 708; J Kraus ‘The correspondence of contract and promise’ (2009) 109 Columbia Law Review 1603.
5. E Weinrib The Idea of Private Law (Oxford: Oxford University Press, rev edn, 2012).
6. C Webb Reason and Restitution: A Theory of Unjust Enrichment (Oxford: Oxford University Press, 2016).
7. Gregory Klass's work is a notable exception, see his ‘Three pictures of contract: duty, power, and compound rule’ (2008) 83 New York University Law Review 1726, and ‘Intent to contract’ (2009) 95 Virginia Law Review 1437.
8. See for example: R Barnett ‘A consent theory of contract’ (1986) 86 Columbia Law Review 269 at 304; R Barnett ‘Contract is not promise; contract is consent’ in Klass et al., above n 1, p 42 at pp 48–50; D Kimel From Promise to Contract: Towards a Liberal Theory of Contract (Oxford: Hart Publishing, 2003) pp 136–142.
9. See Shiffrin, above n 4, at 713, and S Shiffrin ‘Are contracts promises?’ in A Marmor (ed) The Routledge Companion to Philosophy of Law (New York: Routlegde, 2012) p 241 at pp 250–256. These views do not necessarily entail particular commitments about the nature of law. So, for example, a positivist could take a reflective approach by claiming that contract law should (not necessarily does) aim to mirror the norms of promissory morality. Likewise, a natural lawyer might take a divisionist approach, by arguing that although moral norms play a role in identifying contract law, they are not promissory in nature. Nevertheless, positivism tends to gravitate towards the divisionist position, and natural law towards the reflective.
10. See Shiffrin, above n 4, at 713.
11. Balfour v Balfour [1919] 2 KB 571.
12. Tangled up in the contract and promise debate are questions not only about the nature of law, but also debates about the proper limits of the state and the enforcement of morality. See Shiffrin, above n 4, at 713; Barnett (2003), above n 8, p 47: ‘by justifying contract as a species of enforcing purely moral commitments, it seems tantamount to enforcing virtue’.
13. This view achieved considerable traction after the publication of Lon Fuller's paper ‘Consideration and form’ (1941) 41 Columbia Law Review 799. There are good reasons though to doubt the link between consideration and intent to contract, in particular as Mindy Chen-Wishart has argued consideration is neither a necessary nor a sufficient condition for the existence of intent to contract: ‘Consideration and serious intention’ [2009] Singapore Journal of Legal Studies 434 at 441. Furthermore, I tend to agree with Chen-Wishart's argument in the same paper that consideration has its own rationale in notions of reciprocity (at 450–455).
14. Jones v Padavatton [1969] 2 All ER 616 at 621; Klass (2009), above n 7, at 1447–1448; J Beatson, A Burrows and J Cartwright Anson's Law of Contract (Oxford: Oxford University Press, 29th edn, 2010) p 71.
15. Balfour v Balfour at 578–580; Jones v Padavatton at 620; Gould v Gould [1970] 1 QB 275 at 281; E Peel The Law of Contract (London: Sweet & Maxwell, 13th edn, 2011) pp 176–177.
16. Rose and Frank Co v J R Crompton & Bros Ltd [1923] 2 KB 261 at 288.
17. S Leake The Elements of the Law of Contracts (London: Stevens and Sons, 1867) p 9; F Pollock Principles of Contract (London: Stevens and Sons, 1876) p 2; W Anson Principles of the English Law of Contract (Oxford: Clarendon Press, 1879) p 14.
18. Balfour v Balfour at 579.
19. Klass (2009), above n 7, at 1491.
20. Balfour v Balfour at 580.
21. [1969] 2 All ER 616 at 621.
22. Feminists for example have argued that the purpose of the presumption is not evidential, but reflects a policy choice by the courts to keep family life private. See M Freeman ‘Contracting in the haven: Balfour v Balfour Revisited’ in R Halson (ed) Exploring the Boundaries of Contract (Farnham: Ashgate, 1996) p 68 at p 70; M Keyes and K Burns ‘Contract and the family: whither intention’ (2002) 26 Melbourne University Law Review 577 at 595: ‘Reference to the intentions of the parties in order to determine the enforceability of an agreement … makes no sense as the parties are unlikely to have considered the question. Quite clearly, the requirement of intention is based on a judicial policy that contract is “unfamiliar and undesirable” in the family context’ (citing S Hedley Restitution: Its Division and Ordering (London: Sweet and Maxwell, 2001) p 76). See similarly S Wheeler and J Shaw Contract Law: Cases, Materials and Commentary (Oxford: Oxford University Press, 1994) p 150.
23. R Unger ‘The critical legal studies movement’ (1983) 96 Harvard Law Review 561 at 622–623. For further reflections on the contrast drawn by the play and the implications for contract theory see A Brudner ‘Reconstructing contracts’ (1993) 43 University of Toronto Law Journal 1.
24. I rely here of course on Christopher Lasch's famous metaphor. C Lasch Haven in a Heartless World: The Family Besieged (New York: Basic Books, 1977).
25. F Olsen ‘The family and the market: A study of ideology and legal reform’ (1983) 96 Harvard Law Review 1497 at 1564.
26. Unger, above n 23, at 623.
27. Olsen, above n 25, at 1576; M Thornton ‘Intention to contract: public act or private sentiment?’ in N Naffine, R Owens and J Williams (eds) Intention in Law and Philosophy (Aldershot: Ashgate, 2001) p 217; Keyes and Burns, above n 22, at 578.
28. Freeman, above n 22, p 74. For similar arguments see N Taub and E Schneider ‘Women's Subordination and the Role of Law’ in D Kairys (ed) The Politics of Law: A Progressive Critique (New York: Basic Books, 3rd edn, 1998) p 328 at pp 333–334; and Keyes and Burns, above n 22, at 578, arguing that the presumption against contract in domestic settings ‘performs a powerful symbolic function delineating the realm of law from the realm of the family and the feminine, privileging the former over the latter’.
29. Arguably the injustice in cases of detrimental reliance or the conferral of benefits may be mitigated to some degree by the application of reliance or restitution principles. Even though the promisee in these cases may not be able to enforce the agreement, and therefore protect her expectation interest, she may in cases where she has suffered losses or conferred benefits in reliance on the agreement claim compensation for losses suffered or restitution for the gain made by the promise-breaker (See Kimel, above n 8, pp 140–141). However, the availability of these remedies in English law is severely restricted. Promissory estoppel cannot be used as a cause of action (Combe v Combe [1951] 2 KB 215). See J Wightman ‘Intimate relationships, relational contract theory, and the reach of contract’ (2000) 8 Feminist Legal Studies 93 at 95. For an unjust enrichment claim to succeed in this context, there has to be a ‘total failure of consideration’, see Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 at 64–65; P Birks An Introduction to the Law of Restitution (Oxford: Clarendon Press, 1985) pp 242–248; F Wilmot-Smith ‘Reconsidering “total” failure’ (2013) 72 The Cambridge Law Journal 414.
30. Olsen, above n 25, at 1519–1520.
31. S Shiffrin ‘Promising, intimate relationships, and conventionalism’ (2008) 117 Philosophical Review 481 at 502–510.
32. S Hedley ‘Keeping contract in its place – Balfour v Balfour and the enforceability of informal agreements’ (1985) 5 Oxford Journal of Legal Studies 391 at 393–395. See also Keyes and Burns, above n 22, at 581, 586–587 and 595.
33. Gould v Gould [1970] 1 QB 275 at 281.
34. Gregory Klass distinguishes between rebuttal of the presumption against contract on the basis of showing the manifest intention to be legally bound and a rule that requires, as a formality, an express statement of an intention to create legal relations: Klass (2009), above n 7, at 1468 and 1473–1475. He is right to say that from the point of view of legal design these are two different ways of opting out of the presumption, with different costs and benefits. However, in practice, I suspect that the burden of the manifest intent requirement is so strong that it leads de facto to significant pressure on the promisee to make an express statement.
35. Ibid, at 1473–1474.
36. Ibid, at 1474. See also R Gilson, C Sabel and R Scott ‘Braiding: the interaction of formal and informal contracting in theory, practice, and doctrine’ 110 (2010) Columbia Law Review 1377 at 1401.
37. Cf Wightman, above n 29, at 108–109, making the point that it may be a feature of intimate relations that agreements are not explicitly spelt out; this may also reflect the presence of economic dependency: ‘the backdrop to the day to day informality may be the power that a breadwinner can exert’ (at 109).
38. [1970] 1 QB 275.
39. Ibid, at 281.
40. Ibid.
41. Freeman, above n 22, pp 71–72.
42. Usually where the parties have separated the courts are quick to find an intention to contract. Peters' Executors v Inland Revenue Commissioners [1941] 2 All ER 620; Merritt v Merritt [1969] 2 All ER 760 at 762: ‘It is altogether different when the parties are not living in amity but are separated, or about to separate. They then bargain keenly. They do not rely on honourable understandings. They want everything cut and dried. It may safely be presumed that they intend to create legal relations’ (Lord Denning MR), and 762–763 (Widgery LJ).
43. Gould v Gould at 280.
44. J Hasday ‘Intimacy and economic Exchange’ (2005) 119 Harvard Law Review 491 at 518–519; Klass (2009), above n 7, at 1494; R Siegel ‘The modernization of marital status law: adjudication wives’ rights to earnings, 1860–1930' (1994) 82 Georgetown Law Journal 2127 at 2209; Thornton, above n 27.
45. Olsen, above n 25, at 1510; S Firestone The Dialectic of Sex (New York: William Morrow, 1970) pp 142–164.
46. Olsen, above n 25, at 1572.
47. C Fried Right and Wrong (Cambridge, MA: Harvard University Press, 1978) pp 29–30.
48. C Fried Contract as Promise: A Theory of Contractual Obligation (Cambridge, MA: Harvard University Press, 1981).
49. Barnett (1986), above n 8, at 304–305; Barnett (2014), above n 8, p 47 arguing that Fried's theory ‘commits courts to enforcing promissory commitments that the parties themselves may never have contemplated as “contractual” or legally enforceable’.
50. Fried (1981), above n 48, p 38. I follow Kimel's reading of Fried here. Kimel, above n 8, pp 137–138. Fuller gave a similar explanation for the doctrine of consideration, by claiming it performed a cautionary function. See his ‘Consideration and form’ (1941), above n 13, at 816–817.
51. Cf Kimel, above n 8, pp 137–138.
52. Fried, above n 48, ch 2.
53. Randy Barnett rejects the standard interpretation of this section, arguing that it only applies in cases where consideration is absent. For Barnett, consideration is evidence of the existence of an intent to contract. R Barnett The Oxford Introductions to US Law: Contracts (Oxford: Oxford University Press, 2010) p 165. See also Klass (2009), above n 7, at 1438, setting out the various exceptions to section 21.
54. P Atiyah An Introduction to the Law of Contract (Oxford: Clarendon Press, 5th edn, 1995) p 153. Cited by Klass (2009), above n 7, at 1438.
55. Kimel, above n 8, p 75.
56. Ibid, p 29 and pp 74–77.
57. Ibid, p 138. See similarly Chen-Wishart, above n 13, at 452–453.
58. Kimel, above n 8, pp 78–80 and 141–142.
59. Ibid, p 29. Cf M Sandel What Money Can't Buy: The Moral Limits of Markets (London: Allen Lane, 2012) who relies on this notion of corruption and crowding out to justify ethical limitations on the market.
60. Shiffrin distinguishes between empirical and expressive versions of this type of argument. Shiffrin (2012), above n 9, pp 251–252. According to the expressive view, the damage is done by the message that the law sends out about the type of norms that should govern these relationships, rather than the effects of that message. Aditi Bagchi makes this type of argument in ‘Separating contract and promise’ (2010) 38 Florida State University Law Review 709.
61. Shiffrin (2012), above n 9, p 253.
62. Ibid. Cf L Fuller The Law in Quest of Itself (Boston: Beacon Press, 1966) p 137: ‘the effective deterrents which shape the average man's conduct derive from morality, from a sense of right and wrong’; and S Macaulay ‘Non-contractual relations in business: a preliminary study’ (1963) 28 American Sociological Review 55 at 65–66.
63. G Charness ‘Responsibility and effort in an experimental labor market’ (2000) 42 Journal of Economic Behavior & Organization 375 at 375; I Bohnet, B Frey and S Huck ‘More order with less law: on contract enforcement, trust, and crowding’ (2001) 95 American Political Science Review 131 at 132; U Gneezy and A Rustichini ‘A fine is a price’ (2000) 29 Journal of Legal Studies 1 at 3; C Mellström and M Johannesson ‘Crowding out in blood donation: was Titmuss right?’ (2008) 6 Journal of the European Economic Association 845.
64. E Fehr, S Gächter and G Kirchsteiger ‘Reciprocity as a contract enforcement device’ (1997) 65 Econometrica 833; M Dufwenberg and G Kirchsteiger ‘A theory of sequential reciprocity’ (2004) 47 Games and Economic Behavior 268 at 290–291; D Levine ‘Modeling altruism and spitefulness in experiments’ (1998) 1 Review of Economic Dynamics 593 at 595; Macaulay, above n 62, at 64.
65. Shiffrin (2012), above n 9, pp 253–254.
66. A Schwartz and R Scott ‘Contract theory and the limits of contract law’ (2003) 113 Yale Law Journal 541 at 557: ‘reputations work best in small trading communities, especially those with ethnically homogenous members, where everything that happens soon becomes common knowledge, and boycotts of bad actors are easy to enforce’. Citing J Landa ‘A theory of the ethnically homogeneous middleman group: an institutional alternative to contract law’ (1981) 10 The Journal of Legal Studies 349. There are no doubt cultural differences at play too. The importance that the French attach to keeping one's promises may be one of the reasons for the significant divergences that exist between English and French contract law. French contract law attaches enormous importance to upholding the agreement, which is reflected in key doctrines, such as the greater availability of specific performance and damages for cost of cure and non-pecuniary loss, the enforceability of penalty clauses, restrictions on the right to terminate and the absence of a duty to mitigate loss. See S Rowan Remedies for Breach of Contract: A Comparative Analysis of the Protection of Performance (Oxford: Oxford University Press, 2012); L Miller ‘Specific performance in the common and civil law: some lessons for harmonisation’ in P Giliker (ed) Re-examining Contract and Unjust Enrichment: Anglo-Canadian Perspectives (Leiden: Martinus Nijhoff Publishers, 2007) p 281; L Miller ‘Penalty clauses in England and France: a comparative study’ (2004) 53 International and Comparative Law Quarterly 79.
67. B Klein and K Leffler ‘The role of market forces in assuring contractual performance’ (1981) 89 The Journal of Political Economy 615 at 616; L Bernstein ‘Merchant law in a merchant court: rethinking the code's search for immanent business norms’ (1996) 144 University of Pennsylvania Law Review 1765 at 1787–1788; Macaulay, above n 62, at 55 and 64.
68. See I Macneil ‘The many futures of contracts’ (1973) 47 University of Southern California Law Review 691; C Goetz and R Scott ‘Principles of relational contracts’ (1981) 67 Virginia Law Review 1089; M Eisenberg ‘Relational contracts’ in J Beatson and D Friedmann (eds) Good faith and fault in contract law (Oxford: Clarendon Press, 1995) p 291.
69. Kimel, above n 8, p 83.
70. Ibid, p 85.
71. HLA Hart The Concept of Law (Oxford: Clarendon Press, 1961); L Fuller ‘Freedom: a suggested analysis’ (1944) 68 Harvard Law Review 1305; L Fuller The Morality of Law (New Haven, CT: Yale University Press, rev edn, 1969); L Fuller ‘Human interaction and the law’ (1969) 14 The American Journal of Jurisprudence 1. For a recent articulation of the implications of these views for debates in general jurisprudence see N Simmonds Law as a Moral Idea (Oxford: Oxford University Press, 2007).
72. See his seminal paper ‘The many futures of contracts’: Macneil, above n 68. Fuller's point was not completely submerged; it resurfaced and found its clearest expression in Charles Fried's Contract as Promise in 1981, above n 48.
73. L Fuller ‘The role of contract in the ordering processes of society generally’ in K Winston (ed) The Principles of Social Order: Selected Essays of Lon L Fuller (Oxford: Hart, rev edn, 2002) p 187 at p 203. And see: Fuller (1969) ‘Human interaction and the law’, above n 71, at 28-29; Fuller ‘Irrigation and Tyranny’ in K Winston (ed), p 207 at pp 220–221.
74. Fuller (1969) ‘Human interaction and the law’, above n 71, at 27.
75. C Fried ‘The convergence of contract and promise’ (2007) 120 Harvard Law Review Forum 1 at 8.
76. Fuller (1969) ‘Human interaction and the law’, above n 71, at 27–28.
77. Fried, above n 48, p 8; Fried (2007), above n 75, at 8.
78. Fuller (1944), above n 71, at 1313; Fried, above n 48, p 13.
79. Fried, above n 48, pp 8 and 13.
80. Fuller (2002), above n 73, p 200.
81. Ibid, p 201. See also Fried (1981), above n 48, p 89.
82. Investors Compensation Scheme Ltd v West Bromwich Building Society (No 1) [1998] 1 All ER 98 at 114-115 (Lord Hoffmann); L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 at 251; Pink Floyd Music v EMI Records [2010] EWHC 533 at [55].
83. M Chen-Wishart ‘Undue influence: vindicating relationships of influence’ (2006) 59 CLP 231.
84. A Burrows Remedies for Torts and Breach of Contract (Oxford: Oxford University Press, 3rd edn, 2004) p 664.
85. Fried (2007), above n 75, at 8. Explaining the altruistic nature of the duty, Fried says: ‘[A] promise may call for sacrifices far in excess of what residual, background nonpromissory principles of fairness and decency require’. Fried, above n 48, p 131.
86. MSC Mediterranean Shipping Company SA v Cottonex Anstalt [2015] EWHC 283 (imposing a good faith restriction on the right to affirm).
87. Kimel, above n 8, p 78.
88. Ibid, p 79.
89. Fuller (1944), above n 71, at 1310. Fuller's works on freedom are largely forgotten. Thank you to Dan Priel for bringing them to my attention. D Priel ‘Lon Fuller's political jurisprudence of freedom’ (2014) 10 Jerusalem Review of Legal Studies 1.
90. L Fuller ‘The case against freedom’ in K Winston (ed), above n 73, p 315 at p 323, citing Hart who brought out the contrast after his visit to Harvard between 1956–1957; HLA Hart ‘A view of America’ (16 January 1958) The Listener 89; L Fuller ‘Freedom as a problem of allocating choice’ (1968) 112 Proceedings of the American Philosophical Society 101 at 103.
91. Fuller (2002), above n 73, p 321.
92. Fuller (1944), above n 71, at 1312.
93. Fuller (1968), above n 90, at 103; Fuller (2002), above n 90, p 320.
94. Fuller (1944), above n 71, at 1312.
95. Kimel, above n 8, p 126.
96. Fuller (2002), above n 90, pp 319–320; Fuller (1944), above n 71, at 1311–1312: ‘The complex network of institutional ways by which the bulk of our energies is directed and channeled is not an unfortunate limitation on freedom. It is essential to freedom itself’; Fuller (1968), above n 90, at 102–103; L Fuller ‘Law as an instrument of social control and law as a facilitation of human interaction’ (1975) 89 Brigham Young University Law Review 89 at 89–90; Priel, above n 89, at 23.
97. T Macklem Independence of Mind (Oxford: Oxford University Press, 2006) p 67.
98. Fuller (2002), above n 90, pp 323 and 325. There are ways though to bring the centrality of those forms to the fore. Samuel Scheffler asks us to imagine the implications of knowing that the entire human race would be wiped out soon after we die. Many activities such as music or academic research would lose their value he argues because they presuppose the persistence of human institutions and practices. S Scheffler Death and the Afterlife N Kolodny (ed) (New York: Oxford University Press, 2013).
99. Macklem, above n 97, p 37.
100. As Fried says, this is a principle of natural law: ‘[B]y the norm of human nature a person in his dealings with others may not deny either his own or any other person's capacity for free and rational action. To do so is always to act irrationally – that is, a failure to make a true judgment of reality the ground for one's acts – and therefore to act contrary to one's nature’. C Fried ‘Natural law and the concept of justice’ (1964) 74 Ethics 237 at 248. See also Fried (1978), above n 47, p 29; Fuller (1975), above n 96, at 89.
101. Fuller (1969) ‘Human Interaction and the Law’, above n 71, at 27. Fried (1978), above n 47, p 30. Cf C Dalton ‘An essay in the deconstruction of contract doctrine’ (1985) 94 Yale Law Journal 997 at 1098–1100.
102. Unger, above n 23, at 623.
103. Kimel, above n 8, p 137.
104. There are of course positivist thinkers, like Hart, who are exceptions, but the claim here has Hobbes, Austin and Kelsen in mind. C Fried An Anatomy of Values: Problems of Personal and Social Choice (Cambridge, MA: Harvard University Press, 1970) pp 249–250; Fuller (1966), above n 62, p 137.
105. Fuller (1966), above n 62, p 137.
106. Fried (1981), above n 48, pp 16–17.
107. Shiffrin uses the example to illustrate that usually when we make promises they are not promises to perform or pay the monetary equivalent of performance, rather the expectation is that we will perform what we promised. So the example continues: ‘If the no-show plumber were to appear next time matter-of-factly presenting you with a cheque or a discount reflecting the value of your time that was wasted, I suspect that, after emerging from shock, the resentment would not fully dissipate’. S Shiffrin ‘Could breach of contract be immoral?’ (2008) 107 Michigan Law Review 1551 at 1564.
108. Fried (1981), above n 48, pp 8 and 13.
109. Ibid, p 17. Similarly Shiffrin says that promise is ‘the fundamental component of a contract’. See Shiffrin (2008), above n 107, at 1551–1552.
110. Ibid.
111. Ibid.
112. I argue for the relevance of these concepts for debates about the legitimacy of transnational contract law in my paper P Saprai ‘The convergence of contract law in Europe and the problem of legitimacy: a common lawyer's perspective’ (2016) 12 European Review of Contract Law 96 at 102–111.
113. Shiffrin (2007), above n 4, at 724; Rowan, above n 66, pp 118–120; Kimel, above n 8, p 95; J Gardner ‘What is tort law for? Part 1. The place of corrective justice’ (2011) 30 Law and Philosophy 1 at 28–29.
114. Cf J Tasioulas ‘Human rights, legitimacy, and international law’ (2013) 58 The American Journal of Jurisprudence 1 at 20; A Buchanan ‘The legitimacy of international law’ in S Besson and J Tasioulas (eds) The Philosophy of International Law (Oxford: Oxford University Press, 2010) p 95. Discussing the multiple ways in which human rights might be interpreted.
115. Thank you to Fred Wilmot-Smith for helping me to clarify this point.
116. For a general discussion of the thesis see Tasioulas, above n 114, at 19.
117. For an argument that it does see G Letsas and P Saprai ‘Mitigation, fairness and contract law’ in Klass et al., above n 1, p 319.
118. Fried (1978), above n 47, p 167.
119. Fried (1970), above n 104, p 122: ‘[T]he function of concretizing the constraints of justice is the most characteristic function of law’.
120. J Waldron ‘Torture, suicide and determinatio’ (2010) 55 American Journal of Jurisprudence 1 at 2 and 9–10; J Finnis ‘On “the critical legal studies movement”’ (1985) 30 American Journal of Jurisprudence 21 at 43; Fried (1970), above n 104, pp 121–122.
121. For a critique of this choice see Shiffrin (2007), above n 4, at 725. For a defence of the English position see Letsas and Saprai, above n 117, p 319 (relying on the principle of fairness); Fried, above n 75, at 7–8 (relying on altruism); C Goetz and R Scott ‘The mitigation principle: toward a general theory of contractual obligation’ (1983) 69 Virginia Law Review 967 at 973 (defending loss avoidance as the rational).
122. See Rowan, above n 66, pp 147–151.
123. See Gilson et al., above n 36, at 1391–1392. See also R Scott ‘The death of contract law’ (2004) 54 University of Toronto Law Journal 369 at 372 and 374.
124. Robert Scott reports that in the US context, parties increasingly opt for less costly and more flexible informal enforcement: ‘The result is that the law of contract is suffering from stagnation and, even more embarrassingly, from irrelevance’. Scott, ibid, at 370.
125. Gilson et al., above n 36, at 1391–1392; Scott, above n 123, at 372, 374 and 385–386; Macaulay, above n 62, at 64–65.
126. See Fried (1970), above n 104, pp 118–119.
127. M Rosenfeld ‘Contract and justice: the relation between classical contract law and social contract theory’(1985) 70 Iowa Law Review 769 at 880–881.
128. Fuller (1969) ‘Human Interaction and the Law’, above n 71, at 24
129. Priel, above n 89, at 26.
130. On the importance of the publication requirement for contracting parties see Scott, above n 123, at 379-380.
131. See R Dworkin Law's Empire (Cambridge, MA: Harvard University Press, 1986) ch 7; Fuller (1969) ‘Human Interaction and the Law’, above n 71, at 24–25.
132. Fuller (2002), above n 73, p 190. See also J Boyle ‘Legal realism and the social contract: Fuller's public jurisprudence of form private jurisprudence of substance’ (1992) 78 Cornell Law Review 371 at 377.