8
The future of promise in contract law
1. The restricted role of promise in the modern law
In Part 1 of this book, a study was made of the nature of promise and of the uses to which it has historically been put by Western moral and legal sys tems. It was explained how promise originally had a central normative role in the law, deriving partly from a stress upon the virtuous practice of keep ing promises inherited from Greek thought, partly from promissory form and language inherited from Roman law, and partly from later canonical (and biblical) stress upon the duty of faithfulness to one’s word. This latter canonical stress upon promise keeping was extended from the realm of the simple promise to that of contract law. Embodied in the maxim pacta sunt servanda, it resulted in generalised contractual enforcement rather than the particular enforcement of the old Roman numerus clausus of con tracts. Promissory ideas thus breathed new life into contract, allowing it to replace the promise as the paradigm voluntary obligational undertak ing. Promissory language was largely relegated to the role of explaining the nature of contract as an exchange of promises, though the bare or sim ple promise remained as an exceptionally recognised undertaking in most systems, and in one system (Scotland) as a discrete, generally enforceable undertaking (subject to requirements of proof and subsequently form).
In Part 2, selected aspects of the modern law of contract were exam ined in a number of Common law, civilian, and mixed legal systems from a promissory perspective. In the case of some such aspects, it was sug gested that promise provided the most useful or most appropriate ana lysis of the nature of the circumstances studied; in others, it was suggested that promise could not provide the best explanation of why the law was structured the way it was, and that some other rationale explained the feature or rule of contract studied. The suggested appropriateness or use fulness of promise as an explanation of certain features of contract law was intended to signify either that the nature of the rule or transaction in question seemed intrinsically to depend upon the law’s view that it was
453
454 |
Promises and Contract Law |
the will of the parties, as demonstrated in their exchanged contractual promises, which was determinative of the content of the rule or the struc ture of the transaction in question, or that, because the interaction of the parties in the circumstances revealed a unilaterally obligatory undertak ing by one towards the other, promise (in the more restricted sense of a unilateral promise rather than an exchange of promises) was best able to characterise the nature of the obligation intended. As an example of the first type of obvious fitness of promise for explaining the law’s approach, it was suggested that the preference given in some systems to performance remedies, and the generally adopted protection of the performance meas ure in relation to the remedy of damages, are explicable by reference to the high regard placed by the law upon the performance promised by the parties. As examples of the second type of obvious fitness of promise to explain the law, it was suggested that enforcement of duties undertaken at the contractual bargaining stage concerning how offers and tenders will be treated, options to contract, so-called ‘firm’ or ‘irrevocable’ offers, and offers of reward, each embody unilateral undertakings which are most appropriately and accurately analysed as unilateral promises. Where such undertakings are forced by legal systems into contractual form in order to be enforceable (if indeed they are enforceable at all), the resultant contrac tual form has a tendency to distort the nature of the transaction (often, for instance, requiring the use of the presumption of a fictional acceptance), can lead to a confused view of the relationship between the parties and in general does not assist a coherent taxonomy of the law or transparency within the legal system.1 A more honest approach would be to recognise that such transactions are best analysed in unilateral promissory terms and for legal systems to accommodate such an analysis. Such accommo dation might either be (as it is in Scots law) by way of the recognition of an obligation of promise separate from that of contract, able to be used generally in the law wherever that is so desired by promisors, or (if that is thought too radical an approach) at least by a willingness to recognise
1Any reverse tendency to distort genuinely bilateral arrangements by forcing them into unilateral form ought, of course, also to be resisted. In this respect one might note the dogged determination of English law to treat the standard contract of estate agency as a unilateral contract, imposing a duty upon the principal but none upon the agent (see Lord Russell of Killowen in Luxor (Eastbourne) Ltd v. Cooper [1941] AC 108, 124), when the natural analysis of the arrangement is surely that the estate agent should be seen as com ing under a duty at least to use its best endeavours to market and sell the property. Watts and Reynold, Bowstead and Reynolds on Agency (para. 7–035), opine that this natural view would, on account of the Luxor decision, be ‘difficult to establish’. Such a perverse position evidently requires to be revisited.