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From Promise to Contract

Towards a Liberal Theory of Contract

By: Dori Kimel
Media of From Promise to Contract
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Published: 14-03-2003
Format: Hardback
Edition: 1st
Extent: 154
ISBN: 9781841132129
Imprint: Hart Publishing
Dimensions: 234 x 156 mm
RRP: £60.00
Online price : £54.00
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Loren Epson

About From Promise to Contract

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.

Table Of Contents

Acknowledgements

Introduction

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
Mitigation
The Freedom to Change One's Mind

5. Freedom of Contract, Freedom from Contract
I. Freedom of Contract
II. Freedom from Contract

Bibliography
Index

Reviews

“…can one plausibly accept the voluntary view of contracts while rejecting their distinct promissory nature? This is precisely the position that Dori Kimel advocates in his recent, highly original and insightful book.” –  Hanoch Sheinman, Oxford Journal of Legal Studies

“Kimel's excellent book tells us much about the value of our practice of contracting, and how the benefits we receive from such a practice are not always identical to the benefits we receive from our practice of promising. He also helps us to understand how those values square with the values typically associated with perfectionist liberalism, and to that extent he makes great strides towards a liberal theory of contract.” –  Curtis Bridgeman, Modern Law Review

“... the book gives us a richer sense of what Razs tersely stated views on contract might or might not amount to. In sympathetically examining those views, and in opening up a dialogue around and about them, the author makes a useful contribution.” –  N. E. Simmonds, Cambridge Law Journal

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