Foundationalism About Contract Law: A Sceptical View

47 Pages Posted: 3 Aug 2018 Last revised: 7 Aug 2018

George Letsas

University College London - Faculty of Laws

Prince Saprai

University College London - Faculty of Laws

Date Written: July 10, 2018

Abstract

The view that promise is the moral foundation of contract law is familiar in the philosophy of private law. Theorists use the promise principle to judge the justifiability of contract law doctrines, and debate whether existing doctrines converge or diverge from promissory morality. This is now known as the ‘contract and promise’ debate. This paper questions whether promise is the foundation of contract. We do not claim that some other principle serves as a foundation. Rather, we explore whether any single moral principle can serve as the foundation of contract. We distinguish three possible ways in which foundationalism can be understood (necessity, primacy and presumptiveness) and argue that they struggle to account for the interaction between the promise principle and other principles that are relevant to the determination of contractual claims. In light of these problems, we argue that to the extent that the individuation of contract law is a desirable end, it must be done on some other basis.

Keywords: Promise, Contract, Private Law, Jurisprudence

Suggested Citation

Letsas, George and Saprai, Prince, Foundationalism About Contract Law: A Sceptical View (July 10, 2018). Available at SSRN: https://ssrn.com/abstract=3211283 or http://dx.doi.org/10.2139/ssrn.3211283

George Letsas

University College London - Faculty of Laws ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

Prince Saprai (Contact Author)

University College London - Faculty of Laws ( email )

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