Contracting Without Promising

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.