Tuesday, August 22, 2006
Why does the law enforce promises it calls "contracts" but not those it calls "gifts"? It's a good question. Such a good question that nobody has ever really been able to explain it so clearly that everyone agrees -- including me, this morning, on opening day of Contracts I.
In a new paper, Law & Gratuitous Promises, Robert A. Prentice (Texas-Business) takes a look at the various rationales and offers his take on the issues. Here's the abstract:
A foundational question in contract law is why certain promises are enforced and others are not. For many years scholars have attempted to justify the common law’s use of the consideration doctrine to draw this line. Recently, law & economics scholars have turned their attention to this issue, with less than fully satisfying results. This article critically examines the rationales provided by both traditional scholars and law & economics scholars and then contributes an analysis regarding whether gratuitous promises should be enforced that applies the principles of behavioral law & economics.