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Vol 23 No 3 March/April 2018

Book of the Month

Cover of Scamell and Gasztowicz on Land Covenants

Scamell and Gasztowicz on Land Covenants

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From Promise to Contract: Towards a Liberal Theory of Contract

ISBN13: 9781841134949
ISBN: 1841134945
Published: April 2005
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback (Hardback 2003)
Price: £21.99
Hardback edition , ISBN13 9781841132129

Despatched in 10 to 12 days.

This is the paperback edition of a book first published in 2003, which was received with warmth and critical acclaim by scholars of jurisprudence and contract theory. Liberal theory of contract is traditionally associated with the view according to which contract law can be explained simply as a mechanism for the enforcement of promises.

The book bucks this trend by offering a theory of contract law based on a careful philosophical investigation of not only the similarities, but also the much-overlooked differences between contract and promise.

Drawing on an analysis of a range of issues pertaining to the moral underpinnings of promissory and contractual obligations, the relationships in the context of which they typically feature, and the nature of the legal and moral institutions that support them, the book argues for the abandonment of the over-simplified notion that the law can systematically replicate existing moral or social institutions or simply enforce the rights or the obligations to which they give rise, without altering these institutions in the process and while leaving their intrinsic qualities intact.

In its place the book offers an intriguing thesis concerning not only the relationship between contract and promise, but also the distinct functions and values that underlie contract law and explain contractual obligation. In turn, this thesis is shown to have an important bearing on theoretical and practical issues such as the choice of remedy for breach of contract, and broader concerns of political morality such as the appropriate scope of the freedom of contract and the role of the state in shaping and regulating contractual activity.

The book's arguments on such issues, while rooted in distinctly liberal principles of political morality, often produce very different conclusions to those traditionally associated with liberal theory of contract, thus lending it a new lease of life in the face of its traditional as well as contemporary critiques.

Contract Law
1. On the Nature and Value of Promise
Fried’s Argument: Convention,Social Practice, Trust
Trust as a Condition
Why Promise?
Why Want a Promise?
What is Wrong with Breaking a Promise?
The Value of Promise
Promises between Strangers
2. Normativity, Trust and Threats
I. The Disjunctive View
II. Normativity and Threats in Personal Relations
3. The Nature and Value of Contractual Relations
I. Contracts and the Role of Trust
II. Contracts, Promises and Special Relations
4. Remedies
The Standard Remedy and the Theory of the Practice
Choosing a Performance Remedy: Why Not Specific Performance?
The Harm Principle and Remedies for Breach
The Freedom to Change One’s Mind
5. Freedom of Contract, Freedom from Contract
I. Freedom of Contract
II. Freedom from Contract