The Promise of Contract Pluralism

Many contract theorists argue that contracts are promises. This view is appealing because it can justify the institution of contract law—contract law allows parties to vindicate their promissory rights. But contract-as-promise advocates have seriously misunderstood how promises work. They assume a cartoon version of promises, one that is overly abstract, individualistic, and is singularly fixated on the obligation to do what one promised.

Such theorists have failed to adequately attend to other important dimensions of promises: How stringent is the promise? Under what conditions is a person obligated to perform? How is an agent entitled to respond to a breach? How should a promisee respond to a request for release?

When should a promisee agree to renegotiate? These features of promissory morality vary radically across different kinds of human relationships—e.g., marriage, friendship, employment, parenting, and commercial bargains. This is an important result for contract theory. Courts routinely invoke the idea of a general, uniform set of contract principles applicable to all contracts.

But if promissory morality doesn’t justify applying uniform contract principles across different contracting relationships, then likely nothing does. We should thus liberate ourselves from the idea of general contract principles and embrace a kind of contractual pluralism.