Contract Law, Default Rules, and the Philosophy of Promising

Morality, Compensation, and the Contractual Obligation

“…The relationship between the moral norm of keeping promises, or that pacta sunt servanda, and the law of contracts has been extensively discussed in theory (Fried 1981;Atiyah 1981;Craswell 1989;Kaplow & Shavell 2001;Shavell 2006Shavell , 2009Shiffrin 2007Shiffrin , 2009Kraus 2009;Posner 2009). There is, however, scarce evidence on how individuals understand, from a normative standpoint, the obligation created by contractual promises.…”

Contract Theory and Gain‐Based Recovery

“…It is thus reassuring that in attempting to explain what she means by this statement, and when a ‘legitimate interest’ will exist, Barnett claims that ‘it is necessary to tease out the nature of the rights which a promisee gets under a contract’. It is towards this end that Barnett invokes Professor Stephen Smith's view that performed contracts have two distinct benefits: the tangible benefit of shifting resources between the contracting parties, and the intangible benefit of creating bonds of trust between these parties.…”

Reconciling Autonomy and Efficiency in Contract Law: The Vertical Integration Strategy*

“…The best example is provided by Richard Craswell's critique of promise-based theories of contract. 35 His claim is that these theories have no implications, even in principle, for how contract default rules should be designed, a central and unavoidable question of contract law. I have argued elsewhere that Craswell's criticism of Charles Fried's and Randy Barnett's theories is not convincing.…”