Promises and Contract Law: Comparative Perspectives

by Martin Hogg

• ISBN13: 9780521193382
• ISBN10: 0521193389
• Format: Hardcover
• Copyright: 2011-08-22
• Publisher: Cambridge University Press

Summary

Promises and Contract Law is the first modern work to explore the significance of promise to contract law from a comparative legal perspective. Part I explores the component elements of promise, its role in Greek thought and Roman law, the importance of the moral duty to keep promises and the development of promissory ideas in medieval legal scholarship. Part II considers the modern contract law of a number of legal systems from a promissory perspective. The focus is on the law of England, Germany and three mixed legal systems (Scotland, South Africa and Louisiana), though other legal systems are also mentioned. Major topics subjected to a promissory analysis include formation of contract, third party rights, contractual remedies and the renunciation of contractual rights. Part III analyses the future role which promise might play in contract law, especially within a harmonised European contract law.

Author Biography

Martin Hogg is a senior lecturer at the School of Law, University of Edinburgh. He has researched and published extensively in the field of obligations law, in both a national and comparative context.

Table of Contents

Preface	p. xiii
Abbreviations of Court names	p. xvi
Table of cases	p. xviii
Table of legislation	p. xxxi
Theoretical and historical introduction	p. 1
The concept of promise	p. 3
What is a promise?	p. 4
A definition of promise	p. 4
Promise: objectively existing phenomenon or human construction?	p. 8
Testing component elements of the definition of promise	p. 10
A promise is more than merely an internal mental process: promises as speech acts demonstrating commitment	p. 10
A promise is a commitment to a performance of the promisor	p. 21
A promise must manifest more than an illusory commitment or one which the promisor is patently unable to fulfil	p. 22
A promise must relate to the future	p. 22
A promise must state a commitment in favour of another party	p. 23
Things which are not components of the definition	p. 25
Three crucial qualities of relevance to promises: gratuitousness, conditionality, unilaterality	p. 25
Gratuitousness	p. 26
Conditionality	p. 30
Unilaterality	p. 35
Acts having some similarity to, but which are distinct from, promises	p. 38
Vows	p. 39
Oaths	p. 41
Threats	p. 45
Donation (gift)	p. 46
Warranties (guarantees)	p. 48
Agreement	p. 50
Promise as a culturally universal and significant idea	p. 52
Preliminary conclusions	p. 56
Promises as obligations: morality and law	p. 58
Introduction: promise as a type of obligation	p. 58
Taxonomies of obligations in morality and law	p. 59
Promises as moral obligations: the practice of promising	p. 62
Promises as moral, immoral or amoral?	p. 64
Source of the morality of the practice of promising	p. 67
Promising as a virtuous act; the natural law tradition	p. 68
Scripture	p. 77
The canon law	p. 79
Objections to the morality of promising as having a natural law/virtue basis	p. 83
Promising as an act of the will: respect for personal autonomy	p. 86
The 'contract theory' of promising	p. 93
Consequentialism (utilitarianism)	p. 95
Reliance theory	p. 98
A more limited role for reliance	p. 104
Conclusion on the competing theories of the moral value of promises	p. 106
Powers and sanctions relevant to breach of morally binding promises	p. 106
The historical development of promissory ideas in the law	p. 109
Roman law	p. 110
Formal contracts: the stipulatio	p. 110
Informal contracts	p. 114
Conclusion on Roman law	p. 115
Medieval contract law	p. 116
Continental legal thought	p. 116
English law	p. 119
Debt	p. 120
Covenant	p. 121
Unilaterality and bilaterality in early English contract law	p. 123
Assumpsit	p. 123
The doctrine of consideration	p. 125
The Northern natural law school	p. 127
Hugo Grotius	p. 128
Samuel von Pufendorf	p. 130
James Dalrymple (Viscount Stair)	p. 134
Eighteenth and nineteenth centuries	p. 142
English law	p. 142
Scots law	p. 147
Civilian systems	p. 151
German law	p. 151
Robert Pothier	p. 152
Contract theory and practice in the twentieth century	p. 157
A revitalised will theory	p. 166
The modern law	p. 175
Formation of contract	p. 177
Wasted pre-contractual expenditure following termination of contract negotiations	p. 179
A Common law solution to the problem of pre-contractual expenditure: promissory and proprietary estoppel "	p. 180
Promissory estoppel: promissory or reliance-based principle?	p. 182
Promissory estoppel and failed contractual negotiations	p. 185
Proprietary estoppel and failed contractual negotiations	p. 188
Conclusion on estoppel and pre-contractual expenditure	p. 189
A civilian solution to wasted pre-contractual expenditure: culpa in contrahendo and bad faith termination of contractual negotiations	p. 190
A mixed legal system solution to wasted pre-contractual expenditure: liability from an implied assurance that a valid contract exists	p. 197
Other solutions to the problem of pre-contractual liability	p. 201
Conclusion on pre-contractual liability	p. 203
Pre-contractual duties of disclosure	p. 204
Offer and acceptance	p. 210
Offer and acceptance as conditional promise	p. 210
The traditional offer and acceptance model as a unilateral dictation of terms	p. 212
Distinguishing offer from conditional promise	p. 213
Problem cases for a promissory analysis of offer and acceptance	p. 215
Conceiving of offers as binding	p. 217
Enforcement of auction/tender conditions	p. 219
The firm or irrevocable offer	p. 223
Characterising the firm offer	p. 223
Promises of reward	p. 228
options	p. 230
Letters of intent and preliminary contracts	p. 235
An intent to contract	p. 236
A preliminary contract, envisaging a further contract	p. 236
An expectation of a formal contract	p. 237
An expression of intention to do something other than contract	p. 238
A genuine unilateral promissory intention	p. 239
Error in formation of contract	p. 239
Choosing the policies which inform the rules on error	p. 240
Constructing workable classifications which implement the policies chosen	p. 242
Roman law	p. 242
The Common law	p. 244
The mixed legal systems	p. 248
German law	p. 251
An ideal approach to promissory error?	p. 254
Extortion in the formation of contract	p. 257
English law	p. 260
The mixed legal systems	p. 261
German law	p. 265
Conclusion on extortion	p. 265
Implied terms	p. 266
Consideration	p. 274
The Common law	p. 274
The mixed legal systems	p. 276
German law	p. 278
Model law	p. 279
Requirements of form: unwarranted restrictions on promising?	p. 280
Third party rights	p. 284
The challenge to third party rights in contract	p. 284
The historical legal background	p. 292
Third party rights in modern contract law	p. 297
The Common law	p. 297
The mixed legal systems	p. 301
German law	p. 308
Model law	p. 311
Conclusion on third party rights under contract	p. 312
Assignment	p. 313
English law	p. 316
The mixed legal systems	p. 316
German law	p. 318
Model law	p. 319
The problem or transferred loss	p. 320
English law	p. 320
The mixed legal systems	p. 329
German law	p. 330
Conclusion on third parties	p. 332
Contractual remedies	p. 334
The 'interests' protected by remedies	p. 334
Mutuality of promises and withholding of performance	p. 337
The Common law	p. 340
Mixed legal systems	p. 341
German law	p. 345
Model law	p. 347
Specific performance	p. 348
English law	p. 349
Mixed legal systems	p. 352
German law	p. 355
Model law	p. 358
Perfect or substantial performance of contractual promises	p. 358
Contracts for services	p. 359
Sales of goods	p. 363
Injunction (interdict)	p. 365
Damages	p. 368
Contractual damages and interests other than the performance interest	p. 372
Damages for mere breach of contract, or for fault?	p. 376
English law	p. 379
Mixed legal systems	p. 382
German law	p. 387
Model law	p. 392
Liquidated damages: penalty clauses	p. 394
English law	p. 395
Mixed legal systems	p. 397
German law	p. 401
Model law	p. 403
Termination of contract for non-performance	p. 403
Historical origins of the right to terminate	p. 405
English law	p. 405
Mixed legal systems	p. 406
German law	p. 410
Model law	p. 412
Restitution following termination for non-performance	p. 414
English law	p. 414
Mixed legal systems	p. 416
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