Crescente Molina

The aim of this essay is to explore different possible ways of thinking about the connection between the nature of contractual agreements and the rich array of notions that comprise the structure of contract formation. I start from one axiom regarding the nature of contracts: contractual obligations and rights are necessarily brought about by both parties’ assents (the ‘Necessity of Agreement’ axiom or ‘NOA’). I maintain that if we adopt NOA, there are at least two different mechanisms by which contracting agents may form a contractual agreement. One is well-known to anyone familiar with modern contract law: ‘offer and acceptance’. The other has been interestingly neglected by most contract lawyers and theorists: ‘contractual subscription’. I develop the notion of contractual subscription, and then proceed to discuss the concepts of offer and acceptance. Drawing on Reinach’s idea of a ‘social act’, I provide an account of ‘juridical acts’. Juridical acts, I argue, are a type of social act, and contractual offers are a type of juridical act. Finally, I analyze the role of another important notion in contract formation, that of a ‘promise’. Contrary to several contemporary writers, I hold that the act of making a promise, in its elementary form at least, is neither necessary nor sufficient for the formation of a contract. The essay concludes by offering a thesis regarding the connection between NOA and morality of contractual enforcement.

There is one proposition about the nature of contracts that most lawyers and contract law scholars will take as evidently true: a contract is, at least in part, constituted by a promise or group of promises. This basic dogma about the nature of contract – one taught in law schools and widely endorsed by scholars as well as by the Restatement (Second) of Contracts – is the ‘promissory theory’ of contract. Contract theorists who defend versions of the promissory theory often disagree about some important aspects of contract law’s structure and justification but still hold that entering into a contract necessarily consists, at least in part, in making a promise: promising is always necessary for contracting, even if it is often not sufficient. In this article, I argue against the promissory theory and offer an alternative account of contract. I contend that contract law is not merely the law of legally enforceable promises: it is the law that regulates a broader class of rights-modifying agreements, of which promises are just a subset. I call this broader class of agreements ‘juridical transactions.’ Promises are certainly constitutive of some juridical transactions but are completely absent in others. Thus, the notion of a contract is broader and richer than that of a promise, which I argue is present in just one species of contract. Furthermore, I contend that under the promissory theory of contract lies a ‘monistic,’ overly restrictive view of the sources of contractual obligation. By contrast, I defend what I will call a ‘pluralistic’ view. I claim that contractual obligations do not only have their source in the parties’ promises but also in non-promissory sources such as customs or legislation. The account of contract I propose redefines the boundaries between contract and other areas of private law such as property law and invites an important revision of our approach to basic topics in contract theory, such as the relationship between contract and voluntariness, the status of legally implied contractual terms, our understanding of the idea and value of freedom of contract, and the conditions under which boilerplate or standard form contracts should be (un)enforceable. Although the account of the nature of contract I will propose invites us to revise some widespread assumptions about the functioning of contract law, it could also be understood as simply tracking and making sense of the developments that the law of contracts has already experienced. In its modern form, the dynamic body of law that constitutes the law of contracts has in many ways already abandoned the rigid confinements imposed by the promissory theory. What the modern law of contract lacks is an upgraded theoretical framework for thinking about contracts – one that allows the practice of contract to flourish more freely and thus adapt to recurring societal changes.

In this article, I offer a theoretical account of a central yet surprisingly overlooked form of legal influence or control, one that I refer to as the law’s ‘exhortative’ influence. The law exercises an ‘imperative’ influence when it purports to control agents’ behavior by imposing on them legal duties to act or refrain from acting in the legally desired or repelled way. By contrast, it exercises what I call an exhortative form of influence when it aims at impacting agents’ reasons for action whilst refraining from mandating or prohibiting the legally desired or repelled conduct. The law’s exhortative control or influence must be distinguished not only from its imperative influence, but also from what I call the law’s merely ‘instructive’ form of influence, such as the one provided by so-called power-conferring laws. Though I illustrate the functioning of this special form of legal control—the law’s exhortative influence—by using primarily the example of the law of contracts, the article offers novel insights about law in general as a mode of social ordering by developing a theory of the structure of ‘legal incentives’. Legal incentives, I contend, are the means through which the law exercises its exhortative influence. Clearly distinguishing different techniques of legal influence is not only of analytical interest, but should invite us to think of accounts of the justification of legal authority that consider the similarities but also the differences in the moral significance of these diverse techniques.

According to Joseph Raz, the fact of making a valid promise creates “promissory reasons”: it constitutes for the promisor a reason for performing her promise and a reason for not acting for at least some of the reasons that recommend something different than performing. In his latest work on promising, Raz provides a novel account of the grounds of promissory reasons—an account which is different in important respects to the one he defended decades ago. In this paper, I argue that, as his previous one, his latest account of the grounds of promissory reasons faces significant difficulties.

This article argues that the notion of a promissory right captures a central feature of the morality of promising which cannot be explained by the notion of promissory obligation alone: the fact that the promisee acquires a full range of control over the promisor’s obligation. It defends two main claims. First, it argues that promissory rights are distinctively grounded in our interest in controlling others’ deontic world. Second, it proposes a version of the ‘Interest Theory’ of rights that incorporates our interest in purely deontic forms of control into the various human interests that constitute the grounds of our rights.

Under a widespread understanding of the nature of moral obligation, one cannot be under an obligation to perform or omit an act and have a moral power to release oneself from one’s obligation. According to this view, being under an obligation necessarily entails relinquishing one’s sovereignty over the obligatory matter, that is, one’s capacity to control one’s own obligational world. This essay argues against such a view. I shall argue that by making what I will call a commitment, a person assumes an obligation toward another on a given matter while preserving the power to release herself from her obligation.. Commitments constitute morally obligatory acts over which’s obligatoriness those obliged always retain control. They constitute obligations over which obligors preserve moral sovereignty. I show that the notion of commitment sheds light on the structure of important moral phenomena such as some of our loyalty obligations, and, furthermore, that it reveals something central about the justification and scope of the law of contracts.