The Next Best Thing To a Promise

Forthcoming in Private Law and Practical Reason: Essays On John Gardner's Private Law Theory (Haris Psarras & Sandy Steel eds)

26 Pages Posted: 28 Nov 2021 Last revised: 7 Dec 2021

See all articles by Dori Kimel

Dori Kimel

University of Oxford - Faculty of Law

Date Written: November 14, 2021

Abstract

What does the promisor owe the promisee when a promise is broken? Some writers have argued that the same reparative obligation – ‘next-best performance’ – arises, at least by default, in all such cases, no matter what kind of promise has been broken, what background relationship there is between promisor and promisee, and what the circumstances of the breach have been. This paper argues against this position, in part by offering a critique of Neil McCormick’s and John Gardner’s particular theses to that effect. The paper argues, to the contrary, that the one thing that the promisor owes the promisee in all cases of breach is an account, whereas the emergence of other reparative obligations in a given case depends on the combined effect of a number of variables, including the independent desirability of the promised action, reciprocal dimensions of the promise, the fault attending the breach, and the norms of the background relationship between the parties. The conclusions are shown to have a bearing on the relationship between reparative obligations in promise and in contract, on the question of the extent to which promisors (or promisors and promisees jointly) can control the normative implications of promises, and on the relationship between promissory obligations and other moral obligations.

Keywords: Promise, Contract, Reparative Obligations, Remedies For Breach, Fault, Strict Liability, Breach of Contract, Neil McCormick, John Gardner, Continuity Thesis, Bilateral Obligations, Content Independence, Private Law, Promissory Obligations

Suggested Citation

Kimel, Dori, The Next Best Thing To a Promise (November 14, 2021). Forthcoming in Private Law and Practical Reason: Essays On John Gardner's Private Law Theory (Haris Psarras & Sandy Steel eds), Available at SSRN: https://ssrn.com/abstract=3963287 or http://dx.doi.org/10.2139/ssrn.3963287

Dori Kimel (Contact Author)

University of Oxford - Faculty of Law ( email )

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