The Art of Promise and Power of Contract

Abstract

For those who accept the value of personal autonomy, it might seem easy to explain how promise and contract can give rise to genuine obligations. On closer inspection, however, both have features that may make their obligations too onerous to reflect genuine respect for personal autonomy. As Dori Kimel has recently argued, personal autonomy is best promoted by a combination of rules that give people some capacity to commit and some permission to change their minds. But both promise and contract have features that may be too onerous to achieve the right balance: e.g., both appear to be cases of strict liability; both appear to contain reparative obligations that are not completely under individuals’ voluntary control; and both purport to give promisees (or other contracting parties) relatively unbridled authority to demand or waive compliance.

Kimel offers an account of personal autonomy that is uncommonly rich for the legal literature. He uses this account to relieve some of the tensions between promissory obligation and personal autonomy. Although he also offers some suggestions with respect to contract, his suggestions are more tentative and ultimately less plausible. This essay argues that, in order to square contract with a genuine concern for personal autonomy, one must understand contract less on the model of promise (which Kimel calls an “art”) and more on the model of a power. More specifically, contract law gives individuals the power to influence others to act by making legally enforceable promises in circumstances where parties lack the thick relational background that might otherwise generate sufficient trust. That view, which I elaborate in Contract as Empowerment, 83 U. CHI. L. REV. 759, 767 (2016), holds the key to understanding how contract law can be genuinely squared with concern for personal autonomy.

Keywords: contract, promise, jurisprudence, autonomy, Kimel, empowerment, contract as empowerment, expectation damages, remedies, contract theory, Kant, strict liability, personal relationships, relational contract, Mcaulay