Contract, Power, and the Value of Donative Promises

46 Pages Posted: 6 Sep 2017 Last revised: 8 Sep 2017

See all articles by Sabine Tsuruda

Sabine Tsuruda

Queen's University Faculty of Law

Date Written: March 3, 2017

Abstract

Under the donative promise principle, an unrelied-upon promise to make a gift is unenforceable in contract. Commentators worry that enforcement would taint donative relationships by obscuring the promisor’s motive, leaving it unclear whether the gift was ultimately given out of, for example, friendship, or from fear of legal sanctions. This article argues that courts should abandon the donative promise principle and enforce a variety of donative promises even in the absence of reliance. The principle creates doctrinally and morally perverse incentives to rely on the promise by conforming to promisor attempts at undue influence. Meanwhile, people who are too poor to change their circumstances in reliance on donative promises are left dependent on the whim of promisors for basic goods and services. The specter of enforcement need not obscure promisors’ motives, at least not any more so than criminal sanctions might obscure people’s motives for stopping their cars at crosswalks or taking care of children. Indeed, enforcement could enhance the authenticity of donative relationships by mitigating the risk that the promised gift will be perceived as a carrot to conform to the promisor’s wishes. Enforcement could also facilitate trust by obviating reasons to strategically overinvest in the promise and create contingency plans. But donative promises are not homogenous. Gift giving occurs within a variety of social settings characterized by different power dynamics and moral values, some of which may be ill-served by contract principles. This article closes by discussing one such case: volunteer work.

Keywords: contract, gifts, promises, economic inequality, volunteer work

Suggested Citation

Tsuruda, Sabine, Contract, Power, and the Value of Donative Promises (March 3, 2017). South Carolina Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3029862

Sabine Tsuruda (Contact Author)

Queen's University Faculty of Law ( email )

MacDonald Hall
128 Union Street
Kingston, Ontario K7L 3N6 K7L3N6
Canada

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