When are promises legally enforceable? Contracts as formal promises [No. 86]
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When are promises legally enforceable? Contracts as formal promises [No. 86]


One of the great puzzles associated with the
law of contracts asks this very simple question: are all promises to be enforceable? As a moral matter, many people say, if you
make a promise, you have to keep it. But it’s a very difficult proposition to
say that you are on your moral obligation and to say that the entire legal machinery,
costly as it is, should be used to enforce these particular promises. The rough social distinction that made us
quite accurate. It says that promises which are essentially
designed to encourage social obligations, meeting people for dinner, for example, usually
have no intention to create legal relationships. So if they are in breach and somebody doesn’t
show up for the dinner, it’s a set of social sanctions that are going to be applied. On the other hand, when you start having commercial
transactions with deal with the transfer of services on the one hand or the supply of
goods and land on the other, legal enforcement is generally to be presumed and therefore
typically after a writing is done, these things will turn out to be enforceable. Whenever there is a bargain between the two
parties where each side agrees to surrender something to the other in exchange for what
they get back. These promises supported by consideration
are always enforceable and many contracts by definition fall o this class. Uh you cannot have a contract for sale unless
somebody agrees to pay a price for a good so each side is supply consideration to the
other. You cannot have a contract for employment
unless it turns out that one guy agrees to supply services and the other party agrees
to pay for them. But there are classes of promises which, in
fact, are not in the forms of quid pro quo, and the question is whether these are enforceable. You owe me a thousand dollars and I tell you
‘forget about it.’ You can pay me five hundred dollars. Can I then turn around later and say, look
there was no consideration that supported the original forgiveness of the debt, and
so therefore you can now be asked to pay the whole thing. The Roman solution was, when they came to
discharge of obligations. If you forgave part of an obligation, it could
not be enforced. Under the American law and the English law,
it’s much murkier with respect to this particular element and so the basic rule is that bargains
are a huge portion of the landscape. These one-sided promises are less frequent. Typically in business they respect it because
people wish to keep the goodwill of their trading partners but there are a constant
stream of cases in which it’s unclear as to whether or not the needed reliance for
the enforcement of these one-sided promises is in fact available.

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