By Dori Kimel
It truly is normal for theories of agreement legislation to both examine their material as a mechanism for the enforcement of provides, or to disclaim the very inspiration that agreement legislation could be defined as grounded in any certain set of normative ideas or assets of ethical or felony legal responsibility. Liberal thought of agreement is often linked to the 1st of those techniques. This e-book dollars either those developments through delivering a conception of agreement legislations in accordance with a cautious philosophical research of not just the similarities, but in addition the much-overlooked alterations among agreement and promise. via an exam of numerous concerns concerning the character of promissory and contractual kinfolk and the character of the associations that help them, the booklet provides an exciting thesis about the kin among agreement and promise and, for that reason, about the unique services and values which underlie agreement legislation and clarify contractual legal responsibility. This thesis is proven to supply not just an organization theoretical foundation for explaining the normative underpinnings of agreement, but in addition a promising place to begin for facing functional concerns similar to the alternative of treatment for breach of agreement, and coverage matters corresponding to definitely the right scope of the liberty of agreement and the position of the nation in shaping and regulating contractual job.
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Extra resources for From Promise to Contract: Towards a Liberal Theory of Contract
The promisee’s trust, if you like, is what the promisor needs in order to gain access to and plant a belief in the promisee’s mind. Now other things being equal, asking for, and using, something which is the promisee’s in order to gain access to and plant a belief in his mind, can only be considered a legitimate enterprise so long as it is done in a manner which is at least compatible with his interests. Using the promisee’s trust, having intentionally invoked it, in a way which is not compatible with his interests, let alone in a way which amounts to positively harming him, would be a clear cut and a rather extreme case of taking advantage, of using a person.
7 Above n 5, at 29 (the ‘additive’ conception is Hart’s). 8 Ibid at 27–28. ’ By making such a request A provides B with a reason . . to pass the salt. ’ On the additive view, B is now presented with two reasons for passing the salt: the reason generated by the initial request and the reason created by the coercive threat. But this analysis is strikingly inadequate. Rather than leaving the first reason intact, the threat clearly seems to undercut the request and to supersede it: the reason that B had to pass the salt prior to the threat has been destroyed by A’s threat.
13 The disjunctive view, we may conclude, holds no obvious intuitive appeal in the context of cases where a threat is added to a command (nor, we may suspect, where it is added to any other type of reason for action that similarly purports to have an exclusionary force). Dan-Cohen’s main concern, however, is with such cases. He tries to establish that the disjunctive view applies to them just as much as it applies to requests. Let us now examine in turn the arguments introduced in support of this thesis.