What does the promisor owe the promisee when a promise is broken? Some writers have argued that the same reparative obligation – ‘next-best performance’ – arises, at least by default, in all such cases, no matter what kind of promise has been broken, what background relationship there is between promisor and promisee, and what the circumstances of the breach have been. This paper argues against this position, in part by offering a critique of Neil McCormick’s and John Gardner’s particular theses to that effect. The paper argues, to the contrary, that the one thing that the promisor owes the promisee in all cases of breach is an account, whereas the emergence of other reparative obligations in a given case depends on the combined effect of a number of variables, including the independent desirability of the promised action, reciprocal dimensions of the promise, the fault attending the breach, and the norms of the background relationship between the parties. The conclusions are shown to have a bearing on the relationship between reparative obligations in promise and in contract, on the question of the extent to which promisors (or promisors and promisees jointly) can control the normative implications of promises, and on the relationships between promissory obligations and other moral obligations.
DOI: 10.1017/S0008197318000995
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D Kimel, De la Promesa al Contrato: Hacia Una Teoria Liberal del Contrato (Marcial Pons 2018)
ISBN: 978-84-9123-454-8
Chapter (5)
What does the promisor owe the promisee when a promise is broken? Some writers have argued that the same reparative obligation – ‘next-best performance’ – arises, at least by default, in all such cases, no matter what kind of promise has been broken, what background relationship there is between promisor and promisee, and what the circumstances of the breach have been. This paper argues against this position, in part by offering a critique of Neil McCormick’s and John Gardner’s particular theses to that effect. The paper argues, to the contrary, that the one thing that the promisor owes the promisee in all cases of breach is an account, whereas the emergence of other reparative obligations in a given case depends on the combined effect of a number of variables, including the independent desirability of the promised action, reciprocal dimensions of the promise, the fault attending the breach, and the norms of the background relationship between the parties. The conclusions are shown to have a bearing on the relationship between reparative obligations in promise and in contract, on the question of the extent to which promisors (or promisors and promisees jointly) can control the normative implications of promises, and on the relationships between promissory obligations and other moral obligations.
ISBN: 9780521769853
Review (1)
DOI: 10.1017/S0008197318000995
Book (2)
ISBN: 978-84-9123-454-8
ISBN: 1-84113-212-8
Journal Article (7)
ISBN: 0961-5768
DOI: 10.1093/ojls/gqm003
ISBN: 1464-3820
The article examines the relationship between law and morality through the prism of the comparison between contract and promise, and seeks to expose as an over-simplification the notion that the law can systematically replicate or enforce moral practices without altering them in the process. It focuses on the apparent discord between the reluctance of courts to enforce contracts, and the view that the core contractual obligation is performance. Having argued that, by contrast to promise, the intrinsic function of contract is not to foster personal relationships but to facilitate personal detachment, the article explains the abovementioned discord as an implication of Mills harm principle.
DOI: 10.1017/S1352325202083039h
ISBN: 1469-8048
The article examines the popular notion that liberalism is committed to a particularly rigid conception of freedom of contract. The article identifies the roots of that notion in certain misconceptions of modern liberalism and of the nature of contract, and argues instead liberal theory of contract is in fact compatible with, and some cases directly requires, various forms of intervention in the freedom of contract.
DOI: 10.1093/ojls/21.3.473
ISBN: 1464-3820
Case Note (1)
Research programmes
Research Interests
jurisprudence, moral & political philosophy, criminal law and contract law