Private Law Theory

ABSTRACT
The aim of this essay is to explore different possible ways of thinking about the connection between the nature of contractual agreements and the rich array of notions that comprise the structure of contract formation. I start from one axiom regarding the nature of contracts: contractual obligations and rights are necessarily brought about by both parties’ assents (the ‘Necessity of Agreement’ axiom or ‘NOA’). I maintain that if we adopt NOA, there are at least two different mechanisms by which contracting agents may form a contractual agreement. One is well-known to anyone familiar with modern contract law: ‘offer and acceptance’. The other has been interestingly neglected by most contract lawyers and theorists: ‘contractual subscription’. I develop the notion of contractual subscription, and then proceed to discuss the concepts of offer and acceptance. Drawing on Reinach’s idea of a ‘social act’, I provide an account of ‘juridical acts’. Juridical acts, I argue, are a type of social act, and contractual offers are a type of juridical act. Finally, I analyze the role of another important notion in contract formation, that of a ‘promise’. Contrary to several contemporary writers, I hold that the act of making a promise, in its elementary form at least, is neither necessary nor sufficient for the formation of a contract. The essay concludes by offering a thesis regarding the connection between NOA and morality of contractual enforcement.

Molina, Crescente, The Conceptual Foundations of Contract Formation in Auer, Miller, Smith and Toomey (eds), Reinach and the Foundations of Private Law (Cambridge University Press, 2025).