Bibliographic record
Abstract
There is one proposition about the nature of contracts that most lawyers and contract law scholars will take as evidently true: a contract is, at least in part, constituted by a promise or group of promises. This basic dogma about the nature of contract – one taught in law schools and widely endorsed by scholars as well as by the Restatement (Second) of Contracts – is the ‘promissory theory’ of contract. Contract theorists who defend versions of the promissory theory often disagree about some important aspects of contract law’s structure and justification but still hold that entering into a contract necessarily consists, at least in part, in making a promise: promising is always necessary for contracting, even if it is often not sufficient. In this article, I argue against the promissory theory and offer an alternative account of contract. I contend that contract law is not merely the law of legally enforceable promises: it is the law that regulates a broader class of rights-modifying agreements, of which promises are just a subset. I call this broader class of agreements ‘juridical transactions.’ Promises are certainly constitutive of some juridical transactions but are completely absent in others. Thus, the notion of a contract is broader and richer than that of a promise, which I argue is present in just one species of contract. Furthermore, I contend that under the promissory theory of contract lies a ‘monistic,’ overly restrictive view of the sources of contractual obligation. By contrast, I defend what I will call a ‘pluralistic’ view. I claim that contractual obligations do not only have their source in the parties’ promises but also in non-promissory sources such as customs or legislation. The account of contract I propose redefines the boundaries between contract and other areas of private law such as property law and invites an important revision of our approach to basic topics in contract theory, such as the relationship between contract and voluntariness, the status of legally implied contractual terms, our understanding of the idea and value of freedom of contract, and the conditions under which boilerplate or standard form contracts should be (un)enforceable. Although the account of the nature of contract I will propose invites us to revise some widespread assumptions about the functioning of contract law, it could also be understood as simply tracking and making sense of the developments that the law of contracts has already experienced. In its modern form, the dynamic body of law that constitutes the law of contracts has in many ways already abandoned the rigid confinements imposed by the promissory theory. What the modern law of contract lacks is an upgraded theoretical framework for thinking about contracts – one that allows the practice of contract to flourish more freely and thus adapt to recurring societal changes.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.008 | 0.017 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.002 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.008 | 0.016 |
| Scholarly communication | 0.007 | 0.014 |
| Open science | 0.002 | 0.007 |
| Research integrity | 0.007 | 0.008 |
| Insufficient payload (model declined to judge) | 0.045 | 0.008 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".