Philosophy & the Law | Trust in Promise and Contract: One Sense or Two?

Trust in Promise and Contract: One Sense or Two? - Professor Prince Saprai

In Contract as Promise, Charles Fried forged a tight connection between contract and promise. Since the publication of that book, much ink has been spilt by contract theorists on the issue of whether key contractual doctrines converge or diverge with the rules that govern promises outside the law. This has led to what is known in the literature as the ‘contract and promise debate’. With one very important exception, very little attention has been given to another claim Fried made in that book, which was that contracts, like promises, invoke trust. The exception is Dori Kimel’s book, From Promise to Contract. In that book, Kimel argues, contra Fried, that contract and promise diverge in fundamentally important ways. Central to Kimel’s claim is that promise typically invokes a different (altogether thicker) kind of trust, dependent on the existence of pre-existing relationships, than the (more trivial) kind we find in contract which relies on the reassurance given to contractual parties, who are typically strangers, by legal enforceability. In this paper, I will express some doubts about Kimel’s view that the sense of trust in promise differs from the sense in play in contract. Instead, I will suggest that the sense of trust in contract and promise is fundamentally the same.

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