a greater number of exceptional circumstances where such unilateral promises will be enforceable.

In the final part of this book, some suggestions will be offered as to how the idea of promise might serve the future development of the law, partly from the internal perspective of individual legal systems, but also with harmonised legal development (particularly within the European con­ text) in mind.

2.  Future possible development of the law

If, as suggested above, it would be to the benefit of the law to recover the earlier significance accorded to promise, what would be necessary for this to happen? That question can be posed inter-jurisdictionally by reference to certain general considerations, but also in relation to the specific legal systems studied in this work.

(a)  General remarks

There are a number of matters listed below which affect the general pro­ spect of promise being accorded a greater role in contract law in all of the jurisdictions studied. However, a fundamental question is whether legal development is managed one jurisdiction at a time, or whether supranational,­ harmonised development becomes the preferred route. While factors such as globalisation, cost reduction, the ease of doing busi­ ness, and the committal of many transactions to electronic form favour harmonisation, on the other hand legal nationalism, systemic differ­ ences between Common law and civilian systems, and lack of political will for harmonisation, all seem to pull in favour of single jurisdictional legal development. Which will win in the long term is uncertain, though a more prominent role for promise in contract law is most likely to be derived from supranational development and harmonisation, given the recognition accorded to promise in already published model law.

Whether in relation to national or supranational legal development, there are a number of obstacles to promise regaining the ground it once lost in legal thought and practice. Among such obstacles are the following:

(1)Any greater role for promise would first require an agreed understand­ ing of basic obligational concepts essential to describing promises and other obligations. These concepts were considered in Chapter 1, and include qualities such as unilaterality and bilaterality, gratuitousness

and onerousness, and conditionality. Typically, codified systems already have a clear understanding and definition of such basic con­ cepts, as Germany and Louisiana demonstrate. On the other hand, uncodified systems tend to lack such an agreed understanding and definitions: England and Scotland are both beset with this problem (consider the divergent views on what ‘unilateral contract’ means),2 as is South Africa to a lesser though still not insignificant degree. There is a clear divergence in juridical and academic use of these funda­ mental terms in uncodified systems, a phenomenon which is natur­ ally productive of confusion. Without clarification of such confusion and the adoption of uniform definitions of basic obligational ideas, the development of a greater role for promise will be hampered, as the analysis of fact situations and the characterisation of possible solu­ tions to such situations will inevitably remain muddled.

(2)Even if terminology is agreed, there would remain a large antag­ onism in certain quarters to allowing promise a greater normative and explanatory role in the law. The relentless attacks of utilitar­ ians since Bentham onwards have created a fundamental mistrust in the minds of many thinkers as to the value of promise, certainly in a normative but even in a descriptive role. Despite the appear­ ance in recent years of different varieties of neo-promissory ana­ lysis (such as that of Fried and Smith) as well as of neo-virtue ethics, there remain many adherents of reliance theories and of other non- ­promissory theories of contract law. Critics of promise are bolstered in their views by modernist and post-modernist attacks on the idea of the importance of the human will. The resultant confusion means that some have despaired of adducing in the present age any coher­ ent theory of contract law. Any attempt entirely to vanquish prom­ issory sceptics in the academic field may well be fruitless, though an attempt was made in Part 1 of this work to enunciate a revived will theory capable of meeting many of the criticisms of anti-will theo­ rists. It was also suggested how promise need not claim all of the ground which promissory theorists once attempted to, but rather how it can quite happily function as a description of the means by which human beings are permitted by the legislative sovereign to

2A ‘unilateral’ contract strictly refers in English law only to a contract in deed form, yet the courts have utilised the term in other conflicting senses, as earlier discussion in Chapter 4 indicated; in Scotland, there is no such thing as a unilateral contract (save as a misnomer for a gratuitous contract), though one encounters academic and judicial use of the term.

assume voluntary obligations, even if it does not explain the whole content of such obligations.

(3)Even if antagonism to promissory ideas in any form can be overcome, there would remain a deeply ingrained preference in many systems for the accepted promise, and a consequent rejection of the unaccepted promise as a basis for anything other than very exceptional types of liability. Overcoming such a general rejection of the unilateral prom­ ise would, again, not be easy. Antagonism to unilateral promises has a long tradition. Yet, the history of the law of the ius commune prior to around 1700, a law which did give to promise a primary role, is surely not itself an insignificant tradition: what would require to happen is not so much a complete abandonment of tradition, but the redis­ covery and redevelopment of an older tradition. That older tradition of enforcing unilateral promises served many useful purposes, and might (as suggested at various points in this work) do so again. The more recent tradition would be hard, but not impossible, to change.

(4)Were a greater role to be given to promise by particular national legal systems or in a supranational code, a decision would require to be taken as to whether this should be by way of the development of a separate obligation of promise (as in Scots law), by way of treating the unilateral promise as generally enforceable without conceiving of it as a new nominate obligation, or by way of continuing to deny general recognition to such promises while increasing the exceptional cases in which they were enforceable. Though the first option is entirely pos­ sible, it would have the appearance of a radical alteration of the law and thus be unlikely to command widespread support. The second option has already found favour with the drafters of PECL, in which a unilateral promise is treated as a sort of unaccepted contract, and thus subject to the rules on contract with ‘appropriate modifications’ (whatever they may be).3 The framers of the DCFR chose to follow a somewhat different approach. As their project had a wider canvas than merely contract, they were not obliged to try and squeeze promise in to provisions drafted with contract almost entirely in mind. They were instead able to give promise a place in the Book on ‘Contracts and other juridical acts’, the point being that the DCFR treats promise

3PECL Art. 1:107 states that the Principles ‘apply with appropriate modifications to agree­ ments to modify or end a contract, to unilateral promises and other statements and con­ duct indicating intention.’ Art. II.-1:103(2) of the DCFR states that ‘A valid unilateral undertaking is binding on the person giving it if it is intended to be legally binding with­ out acceptance.’

not as a modified sort of contract but as one of the ‘other juridical acts’ (a unilateral juridical act). The approach of the DCFR, though it does not go so far as to recognise promise as a separate class of obli­ gation, nonetheless gives it an independent life of its own by treat­ ing it as a generally enforceable type of undertaking. This seems a preferable­ approach to that taken in PECL, as many rules of contract law stated in contract codes such as PECL are redundant in the case of unilateral promise (the rules on offer and acceptance being an obvi­ ous exa­mple),­ but it is not always clear which apply to promises and which do not.4 The last option, increasing the exceptional cases where unilateral promises are recognised (in some cases by applying prom­ issory analysis to facts currently treated as contractual), is clearly practicable but has the disadvantage of requiring identification of specific transactions which the law is to consider sufficiently import­ ant to merit legal recognition rather than the much simpler process of allowing parties themselves to determine what is important to them. The result of applying an exceptional recognition approach is likely to be both piecemeal and to appear overly paternalistic.

(5)Assuming that some sort of change were desirable (under one of the models discussed in the preceding paragraph), the question of how to achieve it arises. Evidently in codified systems an alteration to the existing Code would be required. If general recognition of unilateral promises were to be allowed, a broad enabling provision could be inserted into the Code in question, and other more specific, excep­ tional provisions could be removed as being in consequence obso­ lete. In codified systems, preference already tends to be given to performance remedies (and thus to the protection of the promissory interest in a wider sense, not just in the narrower sense of unilat­ eral promise), so that only minor codal changes might be needed to enhance the role of promise in that regard. In non-codified systems, the way forward for promise would be harder to plot. Short of whole­ sale change of private law to put it on a codified basis, development would have either to be led by the courts or through statutory change (a ‘Contract Act’, for instance, might, in modernising other aspects of contract law, give legal effect to unilateral promises). Any possible

4Take the rules on rescission for breach of contract, for instance: while a material or serious breach of contract will justify termination of a contract and restitution of a performance tendered, it is not evident that the detail of this principle applies mutatis mutandis to a case of a breach of a condition attaching to a unilateral promise such as might justify a unilateral promisor seeking restitution of his performance.

judicial development would encounter the large theoretical obstacle­ of the abolition of a mutual consideration requirement (where it exists in a specific system) and the rule that only mutual promises are enforced (a component of the privity rule), matters considered further below in relation to Common law development. Such a step might be perceived by many as too radical for the judicial branch of government to undertake. If that were so, then legislative devel­ opment would be required to address the question, as, for instance the Contract (Rights of Third Parties) Act 1999 did for England and Wales in a restricted way by allowing enforcement of promises for the benefit of third parties.

(6)Assuming that promise were to be given a greater role in the law, care would have to be taken not to neuter the potential of gratuit­ ous promise by subjecting it automatically to the legal regime applic­ able to donations. Were that to happen, then if the particular national regime for donations required compliance with strict formal or notar­ ial rules, gratuitous promise would be prevented from fulfilling much of the potential which it has been suggested in this work it might have. However, the risk of that happening is not great, as many gratuitous promises do not relate to the transfer of ownership of a thing, and it is only such transfers which could be conceived of as donations. Gratuitous promise has a large field within which to operate which is not donative in nature.

(7)If supranational harmonisation of contract law or wider civil law is thought desirable, promissory reform might naturally find a place in any such harmonisation, as the examples of the PECL and DCFR indicate. Achieving such harmonisation would itself be problem­ atic, however. There are not insignificant political and juristic objec­ tions to harmonisation, though evaluation of the scope and force of these lies outside this work. Nonetheless, assuming such hurdles can be overcome, the very existence of the PECL and DCFR texts shows that harmonisation is feasible, albeit that it would mean a significant degree of change to the laws and legal culture of some jurisdictions (particularly Common law ones). Outside Europe, the harmonisation of the laws of South Africa and Louisiana with other systems raises considerations different to those applicable within the European con­ text. Though organisations such as the Pan African Lawyers’ Union and the African Union actively promote legal harmonisation across the African Continent as a goal, such an enterprise is at the present time little more than an aspiration, and there is no African equivalent