1. The literature of contract theory is heavily populated by efforts that closely associate contractual obligation with promissory obligation.The most ambitious recent attempts to devise a theory of contract based on a theory of promising are Fried, Charles's Contract as Promise: A Theory of Contractual Obligation (1981)Google Scholar, and Atiyah, P.S.'s Promises, Morals, and Law (1981).Google ScholarSee also Raz, J., Promises and Obligations, in Law, Morality and Society 210Google Scholar (Hacker, P.M.S. & Raz, J., eds., 1977)Google Scholar, and Raz, J. 95 Harv. L. Rev. 916 (1982)Google Scholar (book review).The influence of promissory theory is perhaps best exemplified in the work of Atiyah. Atiyah would have us stop treating the fully executory contract as the paradigm contract; see Contracts, Promises, and the Law of Obligations, 91.Google ScholarL. Q. Rev. 193, 195ff. (1978).Google Scholar Since, however, the fully executory contract is the most promise-like contract of all, i.e., one most justifiably analyzed as an exchange of promises, one might have expected Atiph to doubt, in a corresponding way, whether a promissory analysis of contract was still appropriate. Nevertheless he retains the association of promises with contracts and constructs an entirely novel theory of promises to go with his reconstruction of contract. Atiph (1981), above, Chs. 5–7. More recently, Barnett, R.E.develops a theory of contract based upon a modification of promissory theory in A Consent Theory of Contract, 86 Colum. L. Rev. 269 (1986)CrossRefGoogle Scholar; see especially 300–09. For a skeptical view of the value of promissory theory for understanding contract law, see Craswell, Richard, Contract Law, Default Rules, and the Philosophy of Promising, 88 Mich. L. Rev. 489 (1989).CrossRefGoogle Scholar

2. See Raz, , 95 Harv. L. Rev. supra note 1, at 933–38.Google Scholar

3. See especially Raz, , 95 Harv. L. Rev. at 936Google Scholar, and Raz, , Promises and ObligationsGoogle Scholar, in Hacker, and Raz, , Law, Morality and Society, supra note 1, at 227–28.Google Scholar On the distinction between truly voluntary obligations and the obligations one merely incurs as a result of one's voluntary actions, see Raz, , 95 Harv. L. Rev. at 929–31.Google Scholar

4. Because of the conventional character of many relationships, it is correct to view the acquisition of constitutive obligations as a matter of “consent”; we enter a relationship in the belief that it will entail obligations, understanding that others will take our entering such relationships as entailing these obligations. See Raz, J., The Morality of Freedom, 80ff. (1988).Google Scholar

5. Or, vice versa—how close or deep the relationship is determines what the constitutive obligations are.

6. See, for example, Stoljar, S., Promise, Expectation, and Agreement, 47 Cambridge L.J. 193, 198–200 (1988)CrossRefGoogle Scholar; Atiyah, , Promises, Morals, and Law, supra note 1, at 157–60.Google Scholar Both Raz, and de Moor, A. convincingly refute the notion that a promise must be wantedGoogle Scholar; Raz, , Promises and Obligations, supra note 1, at 213–14Google Scholar; de Moor, A., Are Contracts Promises? in Oxford Essays in Jurisprudence, Third Series 103, 111–12Google Scholar (Eekclaar, J. & Bell, J. eds., 1987).Google Scholar In general, one wants both gifts and promises for either or both of two kinds of reasons: (1) because one wants the substance of what is given or promised, or (2) because one wants the normative situation to change, i.e., the property in the gift to pass, or the promisor to be under an obligation. Likewise, one may refuse a gift or promise because of its substance or because one does not want the normative situation to change. It is therefore incorrect to regard as analytic of the notion of giving or promising that the recipient wants the substance of what is given or promised, since the recipient might easily be more interested, or only interested, in the normative consequences.

7. Cf. Murphy, W.T. and Ruberts, S.. Understanding Property Law 163 (2d ed. 1993).Google Scholar

8. Although they are one-way transfers of value, they should, at a second-order level, enhance the value of the promisor's or donor's life, because he values the enhancement of the recipient's life, which should result from the gift or the performance of the promise.

9. This latter formulation, a decision about “what the normative significance of their actions will be,” covers the case of the simultaneous exchange of property; only with difficulty is one able to treat such an exchange as creating executory obligations about how the parties “will be bound to act” in the future. See, e.g., Nicholas, B., An Introduction to Roman Law (real contracts) (1962)Google Scholar and Penner, J.E., The Idea of Propertyin Law (in press 1997).Google Scholar

10. For a different view that the bilateral character of agreements is a crucial focus for a theory of contract, see de Moor, , Are Contracts Promises? supra note 6, at 104.Google Scholar

11. Supra note 8.

12. Penner, , supra note 9, ch. 7.Google Scholar

13. Of course, we sometimes use the word “promise” to affirm the truth of what we say, as in “I promise you that this car gets 30 miles to the gallon.” Overwhelmingly, however, promises are regarded in law and philosophy as creating obligations, and obligations are duties that guide our (future) behavior. See Raz, , Promises and Obligations, supra note 1, at 211.Google Scholar

14. It is not correct to say that upon sale, the seller “promises” or obliges himself to regard the property he gave in exchange as no longer his, for the law, not the contract, establishes the duty of a nonowner not to interfere with the property of others. Following the sale, the seller is in no different position from anyone else as regards his rights to the goods he sold. The agreement of sale puts him in this normative position; he does not create the legal norms which characterize this position by contract. For a similar view, see Corbin, A. L., Coring on Contracts (One-Volume Edition) (§ 4 1952).Google Scholar

15. In order to apply the doctrine of consideration to agreements of barter or instantaneous sale transactions, I interpret the doctrine of consideration to be broader than Treitel's statement of it: “It is quite irrelevant that the seller has made a good bargain and so gets a benefit from the performance of the contract. What the law is concerned with is the consideration for a promise—not the consideration for a contract.” Treitel, G.H., The Law of Contract 53 (7th ed. 1987).Google Scholar The fact that a barter or sale is instantaneous does not imply that there are no terms to the agreement which constitute representations or warranties regarding the fitness of the goods exchanged, or indeed that the transferor has good title or power to sell them. The validity of these warranties or representations as regards their founding a legal action would appear to depend upon the contract being made for good consideration, as Treitel's discussion of past consideration suggests; Id. at 61–62. But there are no promises here.

16. He does, however, recognize the possibility of the alternative view: “If contract should be defined as consisting of the operative acts of offer and acceptance by the parties, a bartering transaction would be a contract.” Corbin, . supra note 14, at § 4.Google Scholar

17. Id., § 21.

18. Llewellyn, K., What Price Contract—An Essay in Perspective, 40 Yale L. J. 704, 717 (1931)CrossRefGoogle Scholar: Atiyah, P.S., Essays on Contract, 1 (1986).Google Scholar

19. By various steps, the Roman law eventually largely recognized that any agreement executed on one side, or any written agreement, was a legally enforceable contract. Nicholas, , supra note 9, at 189–91, 194–96.Google Scholar The Roman law never made the final step of unifying its law of contracts into one law of contract based on the premiss that any agreement that was seriously formed was legally binding, but the Civilian lawyers did so. Nicholas, , supra note 9, at 205–06.Google Scholar

20. Id. at 159.

21. Id. at 159–61.

22. Id. at 162.

23. Id. at 164.

24. (1854) 23 L.J.Exch. 179.Google Scholar

25. Simpson, A.W.B., Innovation in Nineteenth-Century Contract Law, 91 L.Q.R. 247–78, 257ff. (1975).Google Scholar

26. See, e.g., Treitel, , supra note 15. at 55Google Scholar; Corbin, , supra note 14, at 142, 205–08.Google ScholarSee also Treitel, G.H.. Consideration: A Critical Analysis of Professor Atiyah's Fundamental Restatement, 50 Australian L.J. 439–19, 442 (1976).Google Scholar

27. Raz, J.. On the Nature of Rights, 93 Mind 194, 203 (1984).CrossRefGoogle Scholar

28. See. e.g., Chitty on Contracts, (27th ed. § 24–001, 1994).Google Scholar

29. See Simpson, , supra note 25, at 269–73.Google Scholar I am not arguing that the doctrine of frustration is necessarily a good thing. We could have a contractual regime whereby rules established that every kind of contingent risk should be allocated to one party or the other.

30. On the concept of an exclusionary reason, see Raz, J., Practical Reason and Norms (2d ed. 1990), especially chs. 1 and 2.Google Scholar

31. Id. at 190ff.

32. Raz, , Promises and Obligatians, supra note 1.Google Scholar

33. Raz, , supra note 1, at 933–38.Google Scholar Raz appears to believe that protecting the practice of undertaking voluntary obligations of all kinds is the business of contract law. Raz, states at 938Google Scholar, however “An ultimate judgment on the conditions under which enforcement remedies are appropriate requires a detailed consideration of various classes of contract.”

34. A law of obligations that took into account this typology might perhaps appeal to Atiyah, who has insisted for some time that we are badly served by the present divisions between tort and contract. Atiyah, , supra note 1.Google Scholar A more recent version of this essay, concluding with a reply to his critics, is found in Ch. 2 of Atiyah, , supra note 18.Google Scholar

35. According to its actual terms, the requirement is bogus. As Hedley convincingly argues, the “requirement” is actually a rule of law which keeps the courts from enforcing executory domestic agreements and agreements not made at arm's length, in other words, contracts likely to reflect a significant underlying constitutive relationship. Hedley, S., Keeping Contract in Its Plate—Balfour v. Balfour and the Enforceability of Informal Agreements, 5 Oxford J. Legal Stud. 301 (1985).CrossRefGoogle Scholar

36. Macneil, I.R., Contracts: Adjustment of Long-Term Economic Relations Under Classical, Neoclassical, and Relational Contract Law, 72 Nw. U. L. Rev. 851 (1978).Google Scholar For an economic perspective on relational contracts, see Goetz, C.J. and Scott, R.E., Principles of Relational Contracts, 67 Va L. Rev. 1089 (1981).CrossRefGoogle ScholarSee also Deakin, S. et al. , “Trust” or Law? Towards an Integrated Theory of Contractual Relations Between Firms, 21 J. L. & Socy 329 (1994).CrossRefGoogle Scholar

37. This admittedly somewhat cynical point must be distinguished from a different one. Here I am referring to the existence of a constitutive relationship. However, an example of M. J. Frug's points out the possibility of parties defining their interests in terms of mutual benefit in situations which normally reflect each bargainer's attention to his own interests. Frug claims, “Women are socialized to consider and value other's feelings above their own” and he cites the case of a woman who signed a standard-form contract without reading it because the delivery men who presented it to her were cold and tired, and understandably were in a hurry to leave. One might persuasively argue that the woman unilaterally, but nonetheless reasonably, defined her interests so as to incorporate the interests of others, the delivery men. Here the agreement might reasonably be held to reflect a mutual benefit, which normally underlies mutual or mutual obligatory agreements, in which case there would not be a straightforward bargain. A court might justifiably regard with suspicion a claim that the agreement should be enforced as a bargain. Frug, M.J., Postmodern Legal Feminism 98–100 (1992).Google Scholar I am grateful to Alison Diduck for drawing Frug's example to my attention.

38. See Feinberg, B., The Husband, the Bank, the Wife and Her Signature, 57 Mod. L.R. 467 (1994)Google Scholar for an analysis of the recent House of Lords' decisions in Barclay's Bank plc v. O'Brien, [1993] 4Google Scholar All ER 417, and CIBC Mortgages plc v. Pitt, [1993] 4 All ER 433.Google Scholar The interesting feature of these cases is that the court appears to recognize, in Finding it relevant whether a transaction is on its face to the advantage of the surety, that these three-party transactions may encompass both a bargain and a mutual agreement. The creditor bank may be viewed as entering a bargain with the husband and wife, who inter se regard the transaction as one of mutual agreement, to secure a benefit in which they will both share, i.e., which is in their interest conceived as an interest supported by their ongoing relationship. Where the transaction is not on its face to the advantage of the surety, the bank will be on constructive notice that the wife's consent may be obtained as a result of undue influence. This may be explained on the basis that in such a circumstance there is a significant danger that the wife's consent may be based on her understanding the agreement in terms of a mutual benefit, which is not reflected in the actual terms of the contract. However, as Feinberg rightly points out, even where the face of the transaction does disclose an advantage to the wife: “It is unfair, and somewhat ironic, that the ‘face of the transaction,’ being a matter beyond the control of the wife, should be the basis for denying her relief…. The public perception of possible gain assumes a private sharing between spouses which is not supported on the facts of Pitt.” At trial, Mrs. Pitt's evidence was that “in relation to big items of expenditure, there was usually an argument, she would be shouted down and told it was in their best interests, and that she would also be told that she was stupid and she did not know what she was talking about” (quoted in Feinberg at 473). What this evidence makes fairly clear is that Mr. Pitt had an immense amount of influence over Mrs. Pitt in defining in practical terms what their shared interests were and how they were to be served. Thus, while the recognition that a mutual agreement between the spouses may legitimately underlie a wife's consent (and one would expect that to be the basis of a spouse's consent in such a case) may be commended, this is not a ground for assuming that the definition of the shared interests in a relationship is not unconscionable.

39. Gardner, S., Rethinking Family Law, 109 Law Q. Rev. 263, 282ff. (1993).Google Scholar

40. If these are unincorporated associations at all; see Conservative and Unionist Central Office v. Burrell [1982] 1 WLR 522.Google Scholar

41. See, e. g., Moffat, G., Trust Law Text and Materials (2d ed., ch. 16, 1994).Google Scholar

42. See Penner, , Basic ObligationsGoogle Scholar, in Birks, Peter, ed., Extending Obligations (in press 1997).Google Scholar

43. But see Treitel, , supra note 15, at 121.Google Scholar

44. Fuller, L.L. and Perdue, W.R., The Reliance Interest in Contract Damages: I. 46 Yale L. J. 52, 56–57 (1936).CrossRefGoogle Scholar

45. Kronman, A.T., A New Champion for the Will Theory, 91 Yale L. J. 404, 409 (1981).CrossRefGoogle Scholar

46. Id. at 411.

47. Raz, 95 Harv. L. Rev. supra note 1, at 937–38.Google Scholar

48. Fuller, and Perdue, , supra note 44, at 59–63.Google Scholar

49. Raz, 95 Harv. L. Rev. supra note 1, at 937.Google Scholar

50. That covers the case of the executory agreement. In the case of a simple exchange transaction (see note 8 above), the duty is to meet the terms of the exchange, as in the green oats and old oats example just mentioned in the text Here, complying with duties means complying with tlie terms of the exchange in the first place. The point about enforceability still holds, for the idea is to put someone in the position he would be in according to the contract, even if that does not mean putting someone in the position he would be in had any executory duties been complied with.

51. Raz, 95 Harv. L. Rev. supra note 1, at 937.Google Scholar

52. Another example of an obligation that applies to moral agents in general is the obligation not to harm others, at least wilfully or negligently.

53. Compensation for breach of contract need not be given unwillingly. That is, the breaching party may look to and accept the law's measure of damages as the correct measure of what he owes the other side as a just conclusion to a failed agreement.

54. It might provide valuable negative guidance, i.e., the broken agreement might indicate one way not to go about meeting the constitutive obligation.

55. Atiyah, , supra note 1, especially at 200–09.Google Scholar