Private Law Theory

ABSTRACT
Contract law, we are often told, enforces ‘promises’ – a concept from ordinary social life. Notwithstanding its ubiquity, cracks in this perspective have been showing for a long time – from the doctrine of consideration to contract’s essential multilaterality, contract’s fit with our ordinary understanding of promising doesn’t seem quite right. Less noticed, the view of contract as promise fails to explain the role of contract alongside other situations where the law enforces the content of privately-crafted language, from advance healthcare directives to wills – what might be called the law of ‘privately-crafted obligations’.

This Article offers a novel account of the conceptual foundations of the law of privately-crafted obligations. At play in this domain are three related, ordinary speech acts – promise, to be sure, but also directive and agreement. All three of these speech acts generate content that purports to obligate conduct. But these concepts are distinct. In promises, the content is unilaterally generated by the speaker and purports to obligate the speaker. The content of directives is also generated unilaterally, but purports to obligate the addressee. In contrast, the content of agreements is generated by at least two people together.

Armed with accounts of these three concepts, the law of privately-crafted obligations appears in a new light. Private law, in fact, has no general commitment to enforcing promises or directives; what contract law aspires to enforce are agreements. But in domains as diverse as promissory estoppel and healthcare, agency and property, the law sometimes enforces promises and directives. This new picture offers a glimpse of the normative architecture of the law of privately-crafted obligations, and situates these bodies of law alongside the distinct-but-interrelated doctrines of private law.

Toomey, James, Privately-Crafted Obligations (April 3, 2025).