of the PECL or DCFR to which South African law might contribute. In Louisiana, there is pressure from some quarters for the legal sys­ tem to become more Common law in nature, but this has not thus far been reflected in changes to the legal system.5

(8)Lastly, mention must be made of the doctrine of good faith. The growth of good faith jurisprudence in recent years has been some­ thing of a mixed blessing for promise. On the one hand, some might argue that good faith mandates adherence to one’s word and thus to promises seriously made, whether bilateral or unilateral, gratuitous or onerous. On this view, as Aristotelian virtues and the canon law supported the keeping of promises in earlier times, good faith can be argued to be a modern equivalent of such older structural underpin­ nings of the duty to keep promises. On such a view, the rise of good faith jurisprudence is an opportunity for promise, rather than a threat. This view can, however, be said too readily to equate promising with trustworthiness. It was suggested in Chapter 6 that trust, while it may accompany the making of many promises, is not a necessary component of a promise. As such, the operation of objective good faith, as applied by the courts, in order to moderate the promises strictly made by parties and to impose community values of justice and fairness represents a challenge to the possible re-­establishment of promise as a central idea in the law. The challenge for a future law where both promise and good faith are required to coexist ought not to be underestimated.

(b)  The Common law

The granting of a more prominent role to promise in the Common law of obligations, and more particularly in contract law, faces the theoret­ ical problems of the related doctrines of consideration and privity. The obstacle these doctrines present has been the subject of discussion earl­ ier in this work: to recap, gratuitous contracts, promises made in favour of non-contracting parties, and unaccepted but seriously made prom­ ises (unilateral promises), are all theoretically denied enforcement in the Common law, unless some exceptional means can be found to enforce certain instances of them.

5For instance, Louisiana continues to refuse to implement section 2 of the Uniform Commercial Code (the section relating to sales of goods).

the benefits discussed in earlier chapters of this work, and need not entail any conceptual or practical difficulties. Such a development would greatly reduce, if not remove, the need for a doctrine of promissory estoppel, an equitable stop-gap which has been required to address the problems cre­ ated by legal refusal to recognise the validity of unilateral promises. The recognition of the legal and not merely equitable status of such promises seems a natural step to take: if a promise is worthy of enforcement, why not recognise that at the level of a legal rule rather than at that of an equit­ able remedial entitlement?

The Common law has a great history of adaptability. This is seen in many ways, such as in the forging of the very field of contract law out of the diverse medieval actions, in the fusion of legal and equitable jurisdic­ tions, in varied developments of the requirement of consideration, and in the development of doctrines such as equitable estoppel to remedy per­ ceived flaws in the pre-existing hard edges of contract law. It would be regrettable if the great adaptability of the Common law were to have been lost in the present age, and for lawyers to feel that, if continued adher­ ence to certain doctrines deprived the law of adaptability, this situation could not be amended merely because such doctrines were perceived to have a long tradition. Statutory reform has already given third parties a long overdue entitlement at law; if such reform is also needed in relation to consideration, then it should be undertaken. The problems caused by the requirement of consideration and the refusal to recognise unaccepted promises may have given rise to practical avoidance techniques, but a coherent legal system deserves more than such makeshifts.

(c)  The mixed legal systems

It will be evident from all that has been said in earlier chapters of this work that, though the mixed systems share a similar Roman-Common law heritage, how that heritage has translated into specific contractual rules, and especially the treatment of promises, differs. Scots law most explicitly values the unilateral promise, in giving it separate taxonomic status in the class of obligations; South Africa and Louisiana do not go so far, but do recognise the validity of gratuitous contracts. Even Scotland, however, restricts enforcement of unilateral promises by imposing a requirement of form11 for the validity of non-business promises (itself a less serious

11Before statutory reform of the law in 1995, the requirement of form was instead an evi­ dentiary requirement of proof, all seriously intended unilateral promises being valid but requiring proof by the writ (subscribed written document) or the oath of the promisor.