The doctrine of promissory fraud holds that a contractual promise implicitly represents an intent to perform. A promisor's conditional intent to perform poses a problem for that doctrine. It is clear that some undisclosed conditions on the promisor's intent should result in liability for promissory fraud. Yet no promisor intends to perform come what may, so there is a sense in which all promisors conditionally intend to perform. Building on Michael Bratman's planning theory of intentions, this article provides a theoretical (...) account of the distinction between “foreground” and “background” conditions on intentions in general and then explains why foreground conditions on a promisor's intent to perform are likely to result in material promissory misrepresentation, while background conditions are not. The difference between foreground and background conditions lies in whether the agent accepts the satisfaction of the condition for the purposes of her practical reasoning. A promisor's nonacceptance of a condition on her intent to perform is material because it is likely to affect her preperformance deliberations and investment in the transaction, as well as her willingness to seek agreement with the promisee on how to fill contractual gaps. (shrink)

In recent years there has been a revival of interest in the philosophical study of contract law. In 1981 Charles Fried claimed that contract law is based on the philosophy of promise and this has generated what is today known as 'the contract and promise debate'. Cutting to the heart of contemporary discussions, this volume brings together leading philosophers, legal theorists, and contract lawyers to debate the philosophical foundations of this area of law.

The question of this work is the relationship between cognition and self-knowledge. That question is approached both by way of Kant on apperception and from the perspective of contemporary theories of mind which locate the origin of our cognitive life in interpersonal, interpretive practices, e.g., Sellars, Davidson, Dennett and Brandom. Kant does not integrate the social dimension into his account of cognition. In fact, many of his arguments for the apperception principle are beholden to a picture of mind which precludes (...) his recognizing the social dimension of cognition. Nonetheless, one can reconstruct a Kantian argument for the apperception principle within the framework of a theory which recognizes the constitutive role of interpretation in cognition. ;Chapter One explores the various ways that the priority of interpersonal interpretation has been claimed. These range from analyses of our talk of the mind as descriptive-predictive strategies to functionalist theories of mind to theories which emphasize the connection between interpreting language and attributing propositional attitudes and the normative dimension of interpretation . Chapter Two outlines seven interpretive questions that any reading of Kant on apperception must address, questions about what Kant means by 'apperception' and the character of the apperception principle. Chapter Three is an analysis of those Kantian arguments for the apperception principle which picture the mind as a private arena, arguments which are untenable from the perspective established in Chapter One. Chapter Four explores Sydney Shoemaker's argument for a functionalist version of Kant's apperception principle and argues that his approach is unsatisfactory. Chapter Five introduces Robert Brandom's theory of propositional attitudes with a discussion of Sellars' theory of sentence meaning and Davidson on the relationship between belief and meaning. Chapter Six then looks at what difference the ability to attribute oneself a propositional attitude might make on Brandom's theory. I argue against Brandom that having a belief or an intention presupposes the ability to explicitly say that one has that belief or intention. Chapter Seven returns to Kant and argues that the analysis and conclusion of Chapter Six are broadly Kantian. (shrink)

It is natural to wonder about contract law’s relationship to the morality of promises and agreements. This Chapter distinguishes two ways to conceive of that relationship. First, parties’ agreement-based moral obligations might figure into the explanation of contract law—into an account of its functions or justifications. Contract law might serve to enforce parties’ first-order performance obligations, to enforce second-order remedial obligations, to support the culture of making and keeping agreements more generally, or at least to do no harm to that (...) culture or to people’s ability to act morally. Second, contract can be understood as the legal analog to promise. Both contract and promise enable people to undertake new obligations to one another when they wish. Each is a type of normative power, the one legal, the other moral. The Chapter concludes by arguing that these two ways of thinking about contract law are not mutually exclusive. Contract law both imposes on parties to exchange agreements a legal obligation to perform for reasons independent of the parties’ possible contractual intent, and confers on them the power to undertake that legal obligation when they so intend because they so intend. (shrink)

Scholars have to date paid relatively little attention to the rules for deciding when a writing is integrated. These integration rules, however, are as dark and full of subtle difficulties as are other parts of parol evidence rules. As a way of thinking about Hanoch Dagan and Michael Heller’s The Choice Theory of Contracts, this Article suggests we would do better with tailored integration rules for two transaction types. In negotiated contracts between firms, courts should apply a hard express integration (...) rule, requiring firms to say when they intend a writing to be integrated. In consumer contracts, standard terms should automatically be integrated against consumer-side communications, and never integrated against a business’s communications. The argument for each rule rests on the ways parties make and express contractual choices in these types of transactions. Whereas Dagan and Heller emphasize the different values at stake in different spheres of contracting, differences among parties’ capacities for choice — or the “mechanics of choice” — are at least as important. (shrink)

This essay, to appear in Contract, Status, and Fiduciary Law (Miller & Gold, 2016), explores three ways fiduciary obligations might be like contractual ones: in the methods lawmakers use or should use to determine the content of the obligation; in the private voluntary acts that generate the obligation; and in the fact that the obligation is a default that parties have the power to alter. The thesis is that to the extent that these similarities exist, they are not especially revealing. (...) Theorists who emphasize the similarities commonly treat contract law as a private power-conferring rule, then analogize the law of fiduciary obligations to it. In fact, the law of contract is more complex and serves a broader range of purposes than just giving private parties the ability to undertake legal obligations when they choose. Contract obligations are sometimes imposed for reasons other than party choice, and contract defaults and altering rules can be designed to serve other social purposes. A more nuanced understanding of the functions and design of contract law suggests that structural similarities between fiduciary obligations and contractual ones tell us less about the fiduciary obligations than we might have hoped. The explanation of why that is so, however, reveals important features both of contract law and of the law of fiduciary obligations. (shrink)