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Harvard Law Review Forum

The Convergence of Contract and Promise

Responding to Seana Valentine Shiffrin, The Divergence of Contract and Promise, 120 Harv. L. Rev. 708 (2007)

I agree with the general tenor and many of the details of Professor Seana Shiffrin’s lucid and closely reasoned account of the relation between standard contract doctrine and the morality of promising. In this brief Response, I take up two points with which I disagree. First, Professor Shiffrin argues that contract doctrine, by making expectation damages rather than specific performance the general or default remedy for breach, diverges from what the morality of promising requires. Second, she makes a similar argument about contract doctrine’s imposition of the burden of mitigating damages on the disappointed promisee. In respect to these two arguments she repeats what I think is a frequently made but mistaken argument in the economic literature on promising, which uses these very examples to claim that contract doctrine is not and should not be rooted in the morality of promising, but rather in the economics of efficiency. Professor Shiffrin does not argue for that conclusion. Rather, she would move contract doctrine into closer alignment with what she considers to be the requirements of the morality of promising.

I begin with a general account, one with which I do not suppose Professor Shiffrin would fundamentally disagree, of what I mean by morality and the morality of promising. Every society of any size and complexity, and certainly any such society that seeks the advantages of modernity — such as specialization of functions, accomplishment of time-extended tasks, provision for the future, and accumulation and transmission of knowledge — requires rules to guide the conduct of individuals and to specify the institutions and mechanisms by which those rules are identified, interpreted, enforced, and changed. I think it is an affectation and a quibble to deny these rules the name of law. And to do their work, such systems of rules must display a significant degree of regularity, comprehensibility, and stability — what Professor Lon Fuller has called “the internal morality of law,” a sobriquet that distracts attention from the fact that such a system of rules may be compatible with, and do service to, regimes of very great cruelty, injustice, and oppression.

I begin with a general account, one with which I do not suppose Professor Shiffrin would fundamentally disagree, of what I mean by morality and the morality of promising. Every society of any size and complexity, and certainly any such society that seeks the advantages of modernity — such as specialization of functions, accomplishment of time-extended tasks, provision for the future, and accumulation and transmission of knowledge — requires rules to guide the conduct of individuals and to specify the institutions and mechanisms by which those rules are identified, interpreted, enforced, and changed. I think it is an affectation and a quibble to deny these rules the name of law. And to do their work, such systems of rules must display a significant degree of regularity, comprehensibility, and stability — what Professor Lon Fuller has called “the internal morality of law,” a sobriquet that distracts attention from the fact that such a system of rules may be compatible with, and do service to, regimes of very great cruelty, injustice, and oppression.