Ken:

The point I was trying to make (in response to your second query) was

that one of the challenges facing contract theorists is to come up with

a justification for the law of contract that is (1) consistent with the

norms of a liberal democratic society and that (2) fits and justifies

the existing law. If the theory is just that we should enforce promises

because the bible says so or because people think that we should, then

this is not one that meets challenge (1) (and it doesn't meet challenge

(2) either). It is the enforcement of morality. The usual way to

overcome this problem is to have a theory based-upon some harm that the

law of contract is seeking to remedy. The two leading theories seem to

be: (1) that the harm is to the special bonds of trust of the

individuals in particular and to the regime of promising in general (the

Fried & Raz line) or (2) that the harm is the violation of the

performance right that was acquired by the promisee at the time of

contract formation (the Kant, Hegel, Benson line). I prefer the second

to the first since, the special bond does not fit nor justify the

traditional requirements of the law of contract formation. If it were

correct, for example, acceptance of the promise is totally unnecessary,

consideration is irrelevant and intention to create legal relations is

suspect.

Am I any clearer this time around?

Jason Neyers

Associate Professor of Law &

Cassels Brock LLP Faculty Fellow in Contract Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435

Ken Oliphant wrote:

> Jason

>  

> I have concerns about a couple of things you say at the start of your

> last post:

>  

> ------------------------------------------------------------------------

> *From:* Jason Neyers [mailto:jneyers@uwo.ca]

> *Sent:* 25 November 2008 13:45

> [snip]...  I would argue that consideration is not a formal

> requirement like the seal or notarization at all but rather a

> conceptually necessary part of contract that helps to explain

> why contract law is not a system for the enforcement

> of conventional morality (which would be problematic in a liberal

> democracy)  ...[snip]

>  

> 1. How can consideration be a conceptually necessary part of contract

> when many systems don't have such a requirement at all? It may be

> desirable, at least in common law systems (I express no opinion), but

> I can't see it as "conceptually necessary".

>  

> 2. I'm not sure what to make of your observation that consideration

> "helps to explain why contract law is not a system for the enforcement

> of conventional morality". If you mean simply that the requirement of

> consideration provides an illustration (one of many) of the divergence

> of contract law and conventional morality, then I couldn't disagree.

> But the way you put it makes me feel that you meant more than this,

> though I can't figure out quite what. Can you put me right?

>  

> Best

> Ken

> ******

> *Ken Oliphant*

> *Institute for European Tort Law*

> Reichsratsstrasse 17/2, A-1010 Vienna, Austria

> Tel. (+43-1) 4277-29 662, Fax (+43-1) 4277-29 670

> http://www.etl.oeaw.ac.at <http://www.etl.oeaw.ac.at/>

>  

>

>