Uniformity and Multiplicity in Contract Law: Some Reflections on the Morality of Promises

Abstract

This article engages a recent debate in contract theory concerning whether we should embrace a uniform contract law, or whether we should instead adopt different legal rules for different contracting relationships. A common assumption in the literature is that grounding contract in promissory morality would lead to the former. After all, the thinking goes, consumer purchases, parenting agreements, and commercial contracts all equally involve promises, and promissory morality requires one to do what one promised. But I argue that most contract-as-promise theorists have been operating with an overly abstract and individualistic conception of promissory morality that is too focused on the primary promissory obligation. This has obscured many important normative dimensions of promissory morality: How stringent is the promise? Under what conditions is a person obligated to perform? How is an agent entitled to respond to a breach? How should a promisee respond to a request for release? When should a promisee agree to renegotiate? Through a series of examples, I show how these features of promissory morality vary radically across different kinds of human relationships—e.g., marriage, friendship, parenting, and commercial bargains. I argue that this variance is best explained by conceiving of promissory morality as the morality of joint decision-making. The normativity of joint decision-making is dependent on the other joint projects that the parties have, such as maintaining a friendship, forging a life together as a married couple, or raising children. This is an important result for contract theory: if promissory morality doesn’t justify the application of general contract principles across different contracting relationships, then likely nothing does. So, for the law to have a coherent grounding, it ought to resist the urge to apply uniform contract principles across diverse human relationships, even if promissory morality plays a central justificatory role in contracts.