5 - Rights and remedies in a consent theory of contract

Summary

INTRODUCTION

The mere fact that one man promises something to another creates no legal duty and makes no legal remedy available in case of non-performance. To be enforceable, the promise must be accompanied by some other factor.… The question now to be discussed is what is this other factor. What fact or facts must accompany a promise to make it enforceable at law?

Which interpersonal commitments are properly enforceable as contracts? When contract theorists and philosophers treat this question, they commonly assume that the institution of contract somehow depends on the institution of promise-keeping. They think that contractual duties are species of the general duty to keep one's promise. I think this approach is wrong, both descriptively and normatively. I think that Arthur Corbin was right to insist that to “be enforceable, the promise must be accompanied by some other factor.…” The other factor, by assumption, is extraneous to the promise itself. Moreover, if by a “promise” we mean a commitment to act or refrain from acting at some time in the future, then a contractual duty can exist even where there is no promise – as with an immediate transfer of entitlements.

In this essay, I identify this factor as the “manifested intent to alienate rights” which I shall refer to as “consent.” Consequently, I call this a “consent theory of contract.” A consent theory posits that contractual obligation cannot be completely understood unless it is viewed as part of a broader system of legal entitlements.