From Promise to Contract: Towards a Liberal Theory of Contract.

• Author: Roberts, Jeff
• Position: Book review

Dori Kimel, From Promise to Contract: Towards a Liberal Theory of Contract (Oxford: Hart, 2003). Pp. viii, 149.

Contract theory has long been a fractured field of study. For decades, there has been a schism between contract law's orthodox defenders and those who question the very existence of the institution. The former claim (roughly) that contract embodies a liberal tradition wherein the law serves to facilitate the free will of individuals as that will is expressed in promises. Skeptics argue that will and promise have little to do with judicial decisions, and that contract law is merely a species of liability wherein the law will compensate those who have detrimentally relied on the representations of others.

Dori Kimel steps into this familiar argument. In From Promise to Contract, Kimel claims to offer a fresh perspective on the traditional contract law dichotomy that he hopes will give a new vitality to the liberal understanding of the institution. He endeavours to cast the promise-liability debate into a new framework by means of drawing attention to what are, according to Kimel, overlooked differences between promise and contract.

The project Kimel sets for himself is an ambitious one, and his approach is thoughtful and sophisticated. Initially identifying with the orthodox, promissory tradition of Charles Fried, Kimel seeks to expand that understanding by differentiating between promise and contract. The crucial difference, says Kimel, is that contracts are enforceable.

The fact that contracts are enforceable serves as the departure point for Kimel's thesis. Unlike promises, contracts attract the external sanction of the law. The result is that the intrinsic value of each institution is markedly different. As Kimel explains, making a promise amounts to weighting a statement with normative force based on trust; the institution of promising is inherently about trust. The use of the normative foundation of trust through promising thereby serves to promote personal relations which, according to Kimel, is the intrinsic value of a promise.

Contracts are different. Unlike promises, contracts are coupled with the threat of sanction. This threat serves to significantly negate any role that trust may play in a contract. But contracts are not without their own intrinsic value. That intrinsic value is personal detachment. The institution of contract law, therefore, serves to provide a forum in which willing parties can enter a relationship...