Contract as Promise: The Role of Promising in the Law of Contract. An Historical Account

Stair, Inst 1.10.4.

Ibid.

Drummond v Bisset (1551) Mor 12381.

Sellar, “Promise” (n 1) at 266, McBryde, “Promises” (n 1) at 54.

Stair, Inst 1.10.4.

C von Bar, E Clive and H Schulte-Nölke, Principles, Definitions and Modern Rules of European Private Law Draft Common Frame of Reference (2009) Intr 28, II-1:101, II-1:103.

A recent study by Dr Martin Hogg, Promises and Contract Law (2011) examines some of these issues in detail. See also M Hogg, “Promise: the neglected obligation in European private law” (2010) 59 ICLQ 461.

The historical perspective has not been entirely ignored. James Gordley has discussed the role of promises, albeit largely from the perspective of his main thesis that the modern law of contract can be traced through Aristotle, Thomas Aquinas, the Neo-Scholastics and Natural lawyers. These themes are explored in detail in J Gordley, The Philosophical Origins of Modern Contract Doctrine (1992). A short summary can be found in J Gordley (ed), The Enforceability of Promises in European Contract Law (2001) ch 1.

C Fried, Contract as Promise: A Theory of Contractual Obligations (1981) 16.

Ibid 21. Fried went into slightly more detail in his review of Patrick Atiyah's The Rise and Fall of Freedom of Contract (1979) in (1979-80) 93 Harvard LR 1858 at 1864-1867.

Farnsworth “Parables about promises” (n 13) at 697-698. The relevant passage states, “be true to every promise,” for “you will be called to account for every promise which you have made!”. It appears in The Qur'an at 17: 34. In some translations the word “promise” is replaced by “pledge”, “engagement” or “covenant”. If nothing else these differences merely serve to emphasise that a promise is closely related to other terms that signal binding obligation, for example in M A S Abdel Haleem (tr), The Qur'an (2010) 177.

A modern natural lawyer like John Finnis remains attached to the importance of promising albeit that his explanation for the binding force of promises is more nuanced than the one advanced by earlier generations of natural lawyers: J Finnis, Natural Law and Natural Rights (1992) 298-308.

Fried falls within this group but there are many different versions, for example, D Kimel, From Promise to Contract (2005).

See I Opie and P Opie, The Lore and Language of Schoolchildren (2001) ch 8 for a discussion of verbal formulas used by children as a way of generating obligations. Promises also feature in children's stories. There is a particularly good example in L F Baum, The Wonderful Wizard of Oz (S Wolstenholme ed, 2008) 182, where, having killed the Wicked Witch, Dorothy, the Scarecrow, the Tin Woodman and the Cowardly Lion urge Oz to fulfil the promises that he has made to them.

For a detailed account of the development of commerce in Ancient Greece, see J Hasebroek, Trade and Politics in Ancient Greece (L M Fraser and D C MacGregor tr, 1965).

S Von Reden, Exchange in Ancient Greece (2003) ch 1.

There are, for example, numerous references to promises in Homeric literature. See P Karavites, Promise Giving and Treaty-Making: Homer and the Near East (1992)

For the claim that contracting is based on agreement, see E Cohen “Commercial law”, in M Gagarin and D Cohen (eds), The Cambridge Companion to Ancient Greek Law (2005) 290. Cohen stresses that in contracts concerned with the maritime market (emporoi) that writing was used from an earlier date than for other sorts of agreement. For details of the written maritime contracts, see E Cohen, Ancient Athenian Maritime Courts (2005) 129-136.

Most famously in F Pringsheim, The Greek Law of Sale (1950).

E Carawan, “The Athenian law of agreement” (2006) 46 Greek, Roman and Byzantine Studies 339. Carawan concedes that some real contracts involved the used a legal fiction in order to explain the exchange of property bringing them closer to consensual contracts.

Cicero, De Officiis (W Miller tr, 1913) III: 104.

M Bloch, Feudal Society (L A Manyon tr, 1965) vol 1, 113: “In contracts, the...