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2-2018

Contract, Promise, and the Right of Redress

Andrew S. Gold
Brooklyn Law School, andrew.gold@brooklaw.edu

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Part of the Contracts Commons

Recommended Citation
9 Wm. & Mary Bus. L. Rev. 389 (2017-2018)

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 CONTRACT, PROMISE, AND THE
RIGHT OF REDRESS

ANDREW S. GoLD*

ABSTRACT

This Essay reviews Nathan Oman's recent book, The Dignity

of Commerce. The book is compelling, and it makes an important
and original contribution to contract theory-a contribution that
insightfully shows how markets matter. Yet, in the course of devel-
oping a market-centeredjustificationfor contract law, The Dignity
of Commerce also downplays the significanceof consent andprom-
issory morality. In both cases, the book's argument is problematic,
but this Essay will address questions of promissory morality. Oman
contends that promise-basedaccounts struggle with contract law's
bilateralism and with its private standing doctrine. Yet, promis-
sory morality is a very good fit for these features of contract law if,
instead of focusing on a promisor's moral obligations, we focus on a
promisee's enforcement rights. When we look to the morality of en-
forcement, contract law and promissory morality are a close match.
And, even if promissory morality cannot fully explain contract law,
it can then be an important component of a successful explanation.

* Professor, DePaul University College of Law. I am grateful to Nate Oman

and to participants at a conference on The Dignity of Commerce at William
&

Mary Law School for helpful comments. Any errors are my own.

389
390 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 9:389

TABLE OF CONTENTS

INTRODUCTION ................................... ....... 391

I. THE REMEDIAL DEBATE ............................ ..... 393
A. Bilateralismand the Expectations Remedy ..... ...... 394
B. PrivateStanding................................ 396
II. A CLOSER LOOK AT CORRECTIVE JUSTICE ................. 398
III. THE REDRESSIVE JUSTICE ALTERNATIVE ...... ........... 401
A. Redressive Justice Defined ........................ 402
B. Promises and the Expectation Remedy ............... 404
C. The StandingIssue.............................. 406
IV. THE CHALLENGE FOR REDRESSIVE JUSTICE ...... ......... 408
CONCLUSION ....................................... ..... 416
2018]1 CONTRACT, PROMISE, AND REDRESS 391

INTRODUCTION

The Dignity of Commerce' is a significant step forward for

contract theory. With elegant arguments-even Shakespearean
ones-Nathan Oman shows that contract law can be justified in
a distinctive way. 2 Contract law can be justified through its sup-
port for markets. 3 Adopting this insight, in turn, opens up a range
of further insights about contract law doctrines, and it gives us
genuinely new perspectives on legal policy. For example, it pro-
vides new insights into paternalism in contract law and its poten-
tial merits. 4 It likewise provides an appealing basis for enforcing
boilerplate. 5 The book's thesis is illuminating.
The Dignity of Commerce, however, does not merely give us
a new and fundamental reason to have contract law as an institu-
tion. The book also rejects consent theories, promise theories, and
similar understandings of contractual obligations.6 From Oman's
perspective, it seems consent and promise have relevance just to
the extent they further valuable market institutions.7 And this
strikes me as an error. The Dignity of Commerce intends to offer
us the basis for contract law, but the book's argument is better
understood to offer us a basis for contract law. 8 It develops an im-
portant and valuable justification for contract law-a justification
that until now has received far less attention than it merits-but
still one basis among several.9

1 See NATHAN B. OMAN, THE DIGNITY OF COMMERCE: MARKETS AND THE MORAL
FOUNDATIONS OF CONTRACT LAw (2016).
2 See id. at 1-8 (discussing Shakespeare's works and contract law).
3 See id. at 36-39.
4 See id. at 164-67.
5 See generally id. at 133-59.
6 See id. at 28-29 (rejecting consent theories); id. at 76-79 (rejecting prom-
ise theories of contract).
7 See id. at 76 (suggesting contract law should be organized around deonto-
logical morality "to the extent that doing so fosters a morality that supports
market exchange"); id. at 142 (suggesting consent has "two subordinate roles"
with respect to facilitating commerce and markets).
8 Or, if we subdivide contract types as some suggest, perhaps it gives us the
justification for part of contract law. Cf. HANOCH DAGAN & MICHAEL HELLER,
THE CHOICE THEORY OF CONTRACTS 7 (2017) (endorsing a contract law plural-
ism involving multiple contract types).
9 See generally id.; CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF
CONTRACT OBLIGATION (1981) (arguing for a promissory justification of contract
law); Randy E. Barnett, A Consent Theory of Contract, 86 COLUM. L. REV. 269
392 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 9:389

The difficulty stems from the structure of Oman's argument.

He questions the adequacy of alternative justifications for con-
tract law, and often with very good reason. 1o Yet, even if prominent
non-market concerns (fairness, efficiency, moral rights, respect
for promissory obligations) are incapable of providing stand-alone
contract theories, this conclusion is not sufficient to demonstrate
that a market justification is the only relevant basis for contract
doctrine." It is one thing to say that consent-based theories fail to
adequately ground contract law (a valid point), or that promise-based
theories fail to adequately ground contract law (also a valid point).
It is quite a different thing to rule out the relevance of consent to
a contract theory unless consent happens to advance markets. For
example, even granting the book's premises, consent may still be a
side constraint on legitimate contractual enforcement.12 Similarly,
promissory morality may help to make sense of contract law, even
if we cannot look to promissory morality alone for a complete ex-
planation of contract doctrine.
Although the consent issue is significant in its own right, I
will focus here on promissory morality. Oman's work poses a series
of challenges for promise theories of contract, in light of bilateral-
ism and private standing concerns.13 As we will see, the morality of
promising can easily meet these challenges. Indeed, the morality
of promising is a more natural fit for private standing doctrine than
Oman's preferred account. To see why requires a shift in empha-
sis, for promissory morality does not apply in the way that promise

(1986) (arguing for a consent-based justification for contract law); Andrew S.

Gold, A Property Theory of Contract, 103 Nw. U.L. REV. 1, 3 (2009) (arguing for
a transfer-based justification for contract law) [hereinafter Gold, PropertyTheory].
10 See OMAN, supra note 1, at 28-29 (questioning consent theory); id. at 76-79
(rejecting promise theory).
11 I assume for purposes of this discussion that Oman is making an inter-
pretive claim about contract law-that is, a claim that we should understand
contract law in terms of a market justification, and not in other ways. If his
argument is instead taken to make a normative claim that markets (even vir-
tuous markets) ought to be our only concern at the expense of other moral con-
cerns, the challenges for his approach would be substantially more difficult.
12 In case this seems like a purely hypothetical viewpoint, it should be noted

that this is a standard component of transfer theories of contract. Transfers

are often thought to require consent, yet an individual's consent is not enough
on its own to effectuate a transfer. See, e.g., Gold, Property Theory, supra note
9, at 26 (indicating why consent is not enough); id. at 31 (indicating consent is
a necessary element).
13 See OMAN, supra note 1, at 114-26.
2018] CONTRACT, PROMISE, AND REDRESS 393

theorists often think.1 4 It is not the promisor's performance obli-

gations that should be the focus of our attention when we try to
explain and justify contract law. Rather, promises occupy a different
role. The morality of promises is relevant for determining when a
contracting party deserves a right of redress.' 5
The following sections will develop the significance of this
view. Part I of this Paper will summarize Oman's critique of prom-
ise theories. As noted, this critique takes two forms: a bilateralism
challenge, and a private standing challenge.' 6 Part II will situate
these concerns within a broader account of corrective justice. With
this backdrop, we can better see why promissory obligations are
a problematic basis for explaining contract law. Part III will de-
velop a redressive justice alternative. From this right-focused per-
spective, we can see how promissory morality plays an important role
in contract law, and how promissory morality is a good match for
both bilateralism and private standing. Part IV will discuss a remain-
ing concern for a redressive justice account: the problem of legiti-
mate enforcement. Only some breaches of promise are suitable for a
coercive remedy. This Part will note several bases for thinking that
contractual promises should fall into this category. In the process,
this Part will also indicate why the consideration doctrine is an inte-
gral part of contract law doctrine. The final Part will then conclude.

I. THE REMEDIAL DEBATE

As noted, The Dignity of Commerce develops a bilateralism

challenge and a private standing challenge.1 7 The bilateralism chal-
lenge is a standard feature of contemporary private law theory.' 8
As Ernest Weinrib, Jules Coleman, and others have emphasized,
private law pairs a plaintiff and a defendant together, with inter-
connected rights and duties, wrongs and remedies. 19 We might
imagine deterrent sanctions that take from the defendant and give
to the public fisc, or to a local charity. Or, as in New Zealand, we

14 See infra Part III.

15 See FRIED, supranote 9, at 14-17, 24-27.
16 See OMAN, supra note 1, at 114-26.
17 See id.
18 See JULEs L. COLEMAN, THE PRACTICE OF PRINCIPLE 13-23 (2001); ERNEST
J. WEINRIB, THE IDEA OF PRIVATE LAw 63-66 (1995).
19
For analysis of this bilateral structure, see WEINRIB, supra note 18, at 63-66;
COLEMAN, supra note 18, at 13-23.
394 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 9:389

might think that in order to address certain claims, plaintiffs

should be able to draw on a fund. 20 Neither of these is the ordinary
approach. Damages orders take from the defendant and give to
the plaintiff, and this is built into the law's conceptual structure. 2 1
Oman contends that this bilateralism is not only a problem for
efficiency theories, but also a problem for promissory theories. 22
The second challenge concerns private standing. Private
standing has become a prominent topic in recent years with the
advent of civil recourse theory. 23 As civil recourse theorists em-
phasize, only certain parties get to sue. 2 4 It is simply not the case
that anyone who is foreseeably harmed by a legal wrong can bring
a claim. Furthermore, in the usual circumstance, not even the gov-
ernment has the privilege to initiate private suits against a de-
fendant for wronging another private party.25 Instead, the party
that gets to bring suit is characteristically the party who was le-
gally wronged, and only that party. As Oman notes, "nothing hap-
pens unless the promisee chooses to act." 26 On his account, this
feature is also a hurdle for promissory theories. 27

A. Bilateralism and the ExpectationsRemedy

Before proceeding, it may be worth noting a definitional ques-

tion. While the book references a "bilateralism" challenge for prom-
issory accounts, its discussion centers on the idea that promissory
accounts lack remedial fit. 2 8 It does not argue that remedies are

20 For a helpful discussion of the New Zealand approach and its significance,
see generally David Enoch, Tort Liability and Taking Responsibility, in PmILO-
SOPHICAL FOUNDATIONS OF THE LAW OF TORTS 250 (John Oberdiek ed., 2014).
21 See OMAN, supra note 1, at 113-14.
22 Id. at 114-20.
23 See Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of
Torts, 51 VAND. L. REV. 1, 82-93 (1998) [hereinafter Zipursky, Rights] (discuss-
ing civil recourse theory).
24
Id. at 82-85.
25 See OMAN, supra note 1, at 123.
26
Id. at 113.
27 See id. at 117-26.
28 Oman describes this as a bilateralism argument, which may indicate we
are using different definitions of bilateralism. See id. at 117 ("Promissory the-
ories have similar difficulties accounting for bilateralism and private stand-
ing."). As far as I can tell, his argument nonetheless focuses on remedial fit and
not on the bipolar, structural features usually associated with bilateralism ar-
guments in other settings.
2018] CONTRACT, PROMISE, AND REDRESS 395

going to the wrong party (or parties), or that a promissory account

is otherwise in tension with contract law's bilateral structure. I
am not certain Oman is actually making a bilateralism argument
as the argument is usually characterized. The potential distinc-
tion need not detain us, however, if the book's argument succeeds.
For, if The Dignity of Commerce is right, expectation damages are
a stumbling block for promissory accounts regardless.
To make his case, Oman begins with Charles Fried's classic
promissory account of contract law. 2 9 For Fried, "[t]he connection
between contract and the expectation principle is so palpable that
there is reason to doubt that its legal recognition is a relatively
recent invention."3 0 In Oman's view, Fried is too quick in thinking
that expectation damages match up to what a promisor owes after
breaching.3 1 Sometimes an apology will be the right response, 3 2
and Oman is clearly right in these settings. At some point, we
have probably all found ourselves forced to break a promise, often
due to circumstances outside our control. Depending on our relation-
ship to the other party, the seriousness of the promise, and the con-
sequences of the breach, there are cases where an apology may be
all that is required.3 3
Nor is this the only sticking point. In some cases, expecta-
tion damages might be equivalent to performance-someone who
fails to pay a debt of $500 and then must pay $500 in expectation
damages falls into this category.34 Yet, as Oman notes, there are
many other cases in which a payment of expectation damages is quite
distant from actual performance.3 5 Services are often hard to rep-
licate in a satisfactory way, and in these cases the promise principle
and the expectation principle are not straightforwardly connected.3 6
Once again, what the promisor owes as a matter of promissory
morality could easily diverge from what the law provides for.

29 Id.; see generally FRIED, supranote 9.

30 FRIED, supra note 9, at 21.
31 See OMAN, supra note 1, at 117-19.
32 See id. at 117-18 (describing a convincing hypothetical fact pattern in

which the author should apologize to his wife for breaking a promise rather
than provide her with cab fare).
33 See id. at 117.
34 See id. at 118.
35 See id. at 117-19.
36 See OMAN, supra note 1, at 118-19.
396 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 9:389

The book also considers an alternative view that might explain

the link between expectation damages and promises. 37 Perhaps,
"promissory obligations continue to exist in some sense even after
the initial promise has been broken, and it is this residual promissory
obligation that creates the duty to pay expectation damages."3 8 Now
this is an account that allows for real differences between initially
promised performance and subsequently paid damages remedies:

On this view, expectation damages are simply the continuation

of the initial promissory obligation. If I promise to deliver goods
to you at a specified time and fail to perform, my promissory
obligation has not come to an end. Rather, I remain obligated
to do the next best thing or something of the like. 39

The Dignity of Commerce describes this as a "residual obli-

gations theory." 40 It also suggests that this theory fails. 4 1 Impor-
tantly, in some cases the residual obligations that we owe do not
"consist[] of a duty to pay money." 4 2 Here is Oman's example:

Imagine that I am on the way to the airport to pick up my wife

at 5:00 P.M., but through my own negligence I left late. At 5:15
P.M., I pull into the arrivals lane at the airport, and when I see
my wife waiting at the curb, rather than stopping to pick her
up, I roll down the window and toss out a wad of money as I
speed by. Few would say that such actions demonstrate a mas-
43
tery of promissory morality.

This conclusion is compelling, and, as a conference participant

was quick to add, this promisor behavior seems also to not demon-
strate a mastery of marriage. Throwing some money at a promisee
is often not the next best thing to keeping one's original promise.

B. Private Standing

Promissory theorists must also confront an additional ob-

jection. Oman contends that such theories cannot adequately make

37 See id. at 118-19.

38Id at 118.
39Id
40 Id. at 118-19.
41 See id. at 117.
42 Id. at 119.
43 Id.
2018] CONTRACT, PROMISE, AND REDRESS 397

sense of private standing doctrine.44 It is a standard feature of

contract law that the only parties who may sue for contractual
breach are those parties whose contract rights were actually vio-
lated (third-party beneficiary doctrine being an apparent excep-
tion to the rule). 45 In other words, random bystanders do not get
to sue when they realize that Person A has violated the contrac-
tual rights of Person B. Nor, for that matter, does the State ordi-
narily enforce contract rights even when it becomes aware of a
clear violation.4 Only the promisee can sue.
It is not hard to see how this structure could pose concerns
for a promise theorist like Charles Fried. As Fried recognizes:

The moral force of a promise cannot depend on whether the

promisee chooses to "enforce" the promise. After all, what does
it mean to enforce a promise in the moral sphere? I suppose one
can demand its performance, but if there is a morally binding
obligation under a promise, the existence of the obligation does
not depend on a demand by the promisee-nor on his scolding
the promisor, nor on his feeling resentment. 47

As Oman observes, these "comments seem at least potentially hostile

to private standing." 48 We might readily conclude that anyone,
including the State, has an interest in seeing to it that the con-
tractual promise is kept, whether or not the promisee demands it.
Under a certain reading of promissory morality, then, private
standing looks like a troubling feature of contract law. 4 9 Indeed,
Oman's argument implicates a wider domain. Private standing is
prominently featured in civil recourse theory, and standing doc-
trine may support a broader critique of corrective justice theories
in general.5 0 Whether our concern is tort law or contract law,

44 See id.
45
See RESTATEMENT (SECOND) OF CONTRACTS §§ 302, 304 (AM. LAW INST. 1981).
46 OMAN, supra note 1, at 116.
47 See FRIED, supra note 9, at 41.
48 See OMAN, supra note 1, at 120.
49 See id. at 119-20.
50 For civil recourse accounts that emphasize this feature, see, e.g., Jason
Solomon, Equal Accountability Through Tort Law, 103 Nw. U.L. REV. 1765,
1776-77 (2009); Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91
GEo. L.J. 695, 714-16 (2003); Zipursky, Rights, supranote 23. See also Andrew S.
Gold, A Moral Rights Theory of Private Law, 52 WM. & MARY L. REV. 1873, 1891
(2011) [hereinafter Gold, Moral Rights] (noting standing doctrine challenge for cor-
rective justice accounts). It should also be noted that corrective justice theorists
398 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 9:389

courts generally limit standing to the party who was wronged by

the defendant, and third parties are ordinarily incapable of bring-
ing suit even if they were foreseeably harmed.51 Any private law
theorist that focuses primarily on the enforcement of moral obli-
gations to correct a wrong must explain how standing doctrine is
consistent with her approach. If promissory morality does not
match well with this feature, it is at an explanatory disadvantage.

II. A CLOSER LOOK AT CORRECTIVE JUSTICE

The Dignity of Commerce's suggestion of a residual obliga-

tions theory resonates with the corrective justice tradition. 52 In
particular, it matches the account of corrective justice that John
Gardner has recently developed.5 3 For context, this Section will elab-
orate on that account. Unlike some of the other leading corrective
justice accounts, Gardner's account does not claim that primary
rights continue in existence after a breach of obligation. 54 Instead,
a right holder acquires new secondary rights after suffering a wrong,
and the wrongdoer takes on secondary obligations to do the next best
thing to complying with her original obligations.5 5 With this back-
drop, we can better see what challenges a residual obligations the-
ory faces, and better assess how serious those challenges are.
On Gardner's view, all norms of justice are allocative, in
that they determine who gets how much of something and when.56
For Gardner, however, corrective justice is a distinctive kind ofjustice

have responses available to them. See, e.g., Arthur Ripstein, Civil Recourse and
Separationof Wrongs and Remedies, 39 FLA. ST. U.L. REV. 163, 198-203 (2011).
51 Exactly who should count as a wronged party in these cases is a matter
of some dispute. For a suggestion that third-party beneficiaries may count as
wronged, see generally Nicolas Cornell, Wrongs, Rights, and Third Parties, 43
PHIL. & PUB. AFF. 109 (2015). Others would say that, to be wronged, one's rights
must be violated.
52 See OMAN, supranote 1, at 118-19 (describing a residual obligations theory).
53 See John Gardner, What Is Tort Law For? Part One: The Place of Correc-
tive Justice, 30 LAw & PHIL. 1, 46 (2011).
54 Oman rejects the idea that primary promissory obligations "continue to
exist" after a breach, and I agree. See OMAN, supra note 1, at 118-19. A key
benefit to the picture of corrective justice Gardner develops is that it allows for
this insight. Gardner, supra note 53, at 46.
6 Gardner, supra note 53, at 46.
56 For development of the view that justice is allocative, see id. at 6. See also
H. L. A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY
OF LAW 21-23 (2d ed. 2008) (offering this type of account).
2018] CONTRACT, PROMISE, AND REDRESS 399

because it involves "allocation back"-that is, the undoing of a

transaction.5 7 The presence of corrective justice norms in private
law may then seem mundane. Legal norms of corrective justice
are a commonplace part of tort law and contract law, given that
these legal institutions undo transactions all the time. Such legal
norms may also be explained in a number of ways.58 The key ques-
tion is, can we locate a moral norm of corrective justice that will
justify these legal norms of corrective justice?
Gardner's response to this challenge is based on an idea he
calls the "continuity thesis."59 This thesis suggests that, all else equal,
those reasons that justify a primary obligation will also justify a sec-
ondary obligation when the primary obligation has not been met.6 0
Reasons for action are thus more persistent than obligations; such
reasons may continue to exist even after an obligation is breached. 6 1
Consider the following example, which Gardner uses to il-
lustrate his theory:

I promise to take my children to the beach today, but an emer-

gency intervenes and I renege on the deal. Let's say I was am-
ply justified in doing so. One of my students, let's say, was in
some kind of serious and urgent trouble from which only I could
extricate him, and only by devoting most of the day to it. In spite of
this ample justification for letting the children down today I am
now bound, without having to make a further promise, to take them
62
to the beach at the next suitable opportunity (if there is one).

6 Gardner, supranote 53, at 9-10 ("Something has already shifted between

the two parties. The question of corrective justice is not the question of whether
and to what extent and in what form and on what ground it should now be
allocated among them full stop, but the question of whether and to what extent
and in what form and on what ground it should now be allocated back from one
party to the other, reversing a transaction that took place between them.").
r8 The allocation back structure is sufficiently abstract that it can be ex-
plained not only by Kantian and other deontological approaches, but also by
economic accounts. See, e.g., Richard A. Posner, The Concept of CorrectiveJus-
tice in Recent Theories of Tort Law, 10 J. LEG. STUD. 187, 201 (1981) (explaining
corrective justice in efficiency terms).
59 Gardner, supranote 53, at 33.
6o See id. A related norm is also described by Joseph Raz. See Joseph Raz,
PersonalPracticalConflicts, in PRAcnCAL CoNFucrs: NEW PHILOsoPHcAL ESSAYS
172, 189-93 (Peter Baumann & Monika Betzler eds., 2004) (analyzing the con-
tinuity of reasons for action).
61 See Gardner, supra note 53, at 33.
62
d. at 28.
400 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 9:389

Once the promised day is over, the original obligation vanishes

along with it. The day at the beach has already passed-any future
visit to the beach is at best a close substitute. A substitute perfor-
mance will nevertheless be morally required.
While it may no longer be possible to meet the original ob-
ligation (which was either performed or not), "those reasons in
favour of the action that contribute to its obligatoriness can each
be conformed to more or less perfectly."6 3 It is still possible to con-
form, to some degree, to the reasons for action that supported the
original obligation to take the children to the beach. As Gardner
notes, "[e]very reason for action is potentially a reason for multi-
ple actions." 64 It may no longer be possible to take the children to
the beach today, but it may be quite possible, and obligatory, to
take the children to the beach on the next suitable occasion. 65
From this perspective, the original pre-breach obligation is
simply gone. It ceases to exist. But there are new obligations now,
and these obligations mandate corrective justice. This moral un-
derstanding of corrective justice norms, moreover, can justify the
legal norms of corrective justice that we find in private law. 6 6 Be-
cause Gardner indicates that the next best thing obligation applies
"all else ... equal,"6 7 there is also room to take specific context into
account without automatically assuming these secondary obliga-
tions take hold.
Notice, however, that this is a perspective on corrective jus-
tice that emphasizes the obligations of wrongdoers. We might
wonder how such obligations can match up with the law, given
that it is frequently the State that brings about a corrective out-
come, and not the wrongdoer herself (or at least not voluntarily).6 8
Gardner's answer is a principle he calls "proposition (c)," according to
which, corrective justice governs the conduct of "the person from
whom the transfer back is to be made, or anotherperson acting on
behalf of thatperson."69 If we allow for vicarious agency, the State

63
Id. at 30.
64
Id. at 31.
65 Id. at 33.
66 See id. at 33-34.
67 Id. at 33.

68 See id. at 10.

69
Id. at 10 (emphasis in original).
2018] CONTRACT, PROMISE, AND REDRESS 401

can bring about corrective justice when it makes contracting par-

ties remedy their breaches. 70
With these pieces in place, we are now positioned to assess
Oman's argument about a "residual obligations" account of con-
tract remedies. 71 In some respects, this corrective justice theory
is versatile enough to respond to Oman's concerns. Because there
is an "all else equal" proviso, the continuity thesis has the flexi-
bility to deal with hard cases in which potentially conflicting rea-
sons for action come into play. 72 This theory can allow for cases
where apologies are the right answer. Still, in other contexts
Oman's point will nonetheless hold true-the next best thing, all
things considered, will often be different from the law's expecta-
tions remedy.7 3 To return to the airport example, throwing some
money out the window is not going to be adequate as the next best
thing, and while litigation settings do potentially change the
moral context, they do not change it in so dramatic a fashion that
expectation damages will be a consistent fit. 7 4

III. THE REDRESSIVE JUSTICE ALTERNATIVE

In prior work, I have argued that there is another difficulty

with Gardner's approach.75 It is not that Gardner has failed to
capture moral norms of corrective justice-his account is quite
successful as a moral theory. The difficulty is that, with limited
exceptions, courts are not typically acting on behalf of wrongdoers
when they order damages. 76 Proposition (c) is not going to help us
then, because the State is not acting on behalf of wrongdoers at
all. To the contrary, courts act on behalf of right holders in the

70 See id. at 11.

71 See OMAN, supranote 1, at 118.
72 See Gardner, supranote 53, at 33.
7 See OMAN, supra note 1, at 117.
74 It might be argued that Oman's example is a special case, given that it
involves the husband-wife relationship. Special relationships may alter our ob-
ligations of repair. Cf. JOSEPH RAz, THE MORALITY OF FREEDOM 211 (1986) (not-
ing that friends may owe each other less than full compensation after a wrong).
That point, while accurate, is not enough to undermine Oman's broader insight
that money is not always a natural fit when we break our promises. See OMAN
supra note 1, at 117.
75 See Andrew S. Gold, A Theory of Redressive Justice, 64 U. TORONTO L.J.
159, 160 (2014) [hereinafter Gold, Redressive Justice].
76 See id. at 178.
402 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 9:389

ordinary case where they issue a damages order.77 Moreover, the

justice that governs right holders when they allocate back (or the
State when it acts on behalf of such right holders) is not a mirror
image of corrective justice.78
When we recognize that the justice in private law reflects
a right holder perspective, we can also see more clearly how prom-
issory morality helps to explain contract law. The question of when
a promisee can justly enforce a remedial right is not a question
about the performance obligations of a promisor, at least not di-
rectly. Not all promises are enforceable, and not all legitimate cases
of enforcement are a match for what the promisor owes. Figuring
out when redress is just-and what remedies it calls for-requires
us to figure out how a promisee's moral rights are structured. As
we will see, these moral rights are a good fit for contract law doc-
trine, and the link between the morality of promises and the jus-
tice of legal outcomes can be a close one.

A. Redressive Justice Defined

Let's begin with our category of justice, for that starting

point can determine which aspects of promises ought to matter.
Allocation back is central to contract law, but allocation back also
covers more territory than just cases in which a wrongdoer undoes
her own wrong, or in which a third party such as the State acts on
her behalf. There is conceptual space left over if we adopt propo-
sition (c) (the proposition that corrective justice governs duty bear-
ers or those acting on their behalf). After all, sometimes right holders
undo the wrongs committed against them, and these right holders
are often acting on their own behalf.7 9 In addition, when third
parties intervene, they are frequently attempting to help the right
holder alone, and are not trying to assist the wrongdoer in complying
with her duties. 80 These cases involve allocation back, but they do
not involve corrective justice as Gardner defines it. They involve
redressive justice: the type of justice that governs allocation back by
a right holder, or by a party acting on the right holder's behalf.8 1

77 See id. at 186.

78 See id. at 187.
79 See id. at 185.
80 See id. at 199-200.
81 See id.
2018] CONTRACT, PROMISE, AND REDRESS 403

It is not hard to find divergence between corrective justice

and redressive justice-they are not mirror images. 82 In some con-
texts, corrective justice comfortably fits a given fact pattern, while
redressive justice does not. 8 3 Ordinary promises provide clear il-
lustrations. Suppose, for example, that I promise to have lunch
with you on Monday and then break my word. You cannot force
me to have lunch with you on Tuesday-that would not be a legit-
imate exercise of redressive justice, even though I am in the wrong.
Yet, all else equal, I would owe an obligation to do the next best
thing (lunch at the next available opportunity), and this obliga-
tion would sound in corrective justice. This is a case where correc-
tive justice fits and redressive justice does not. In other contexts,
both types of justice are applicable, but appropriate remedies di-
verge. 84 In yet other settings, the two types of justice will call for
the same remedy-but this convergence is not guaranteed.8 5
Authorship also matters for another reason-it has a bearing
on our moral status.86 Imagine that Allen and Beth work together in
the same office. Allen has wrongfully taken Beth's coffee mug, con-
verting it for his own use. Their colleague, Charles, is known for
his absent-mindedness, and in the midst of talking to Allen he picks
up the coffee mug and inadvertently places it on Beth's desk. In a case
like this, Allen has now missed his opportunity to engage in corrective
justice-the wrong's effects have simply been undone. In such a case,
we should be glad that the mug was returned, but there is still
cause for regret. Allen's moral ledger will inevitably look different
because he has missed the opportunity to fix his own wrong.8 7

8 2 d. at 160.
8 It is arguable that some unjust enrichment cases involve the reverse pos-
sibility: redressive justice may fit while corrective justice is questionable. For
example, this view may apply if we adopt Stephen Smith's perspective on the
morality of unjust enrichment law. See Stephen A. Smith, Justifying the Law
of Unjust Enrichment, 79 TEx. L. REV. 2177, 2187, 2194-95 (2001) (assessing
the enriched party's moral obligations and suggesting that party may have no
duty to return a mistakenly shipped cow). For a discussion of this potential
divergence, see Gold, Redressive Justice, supra note 75, at 190.
84 See Gold, Redressive Justice, supra note 75, at 161.
85 See id.
86 See id.
87 Id. at 193. This point may have bearing on our character more generally.
Cf. TONY HONORt, RESPONSIBILITY AND FAuLT 29 (1999) (contending that "[i]f
actions and outcomes were not ascribed to us on the basis of our bodily move-
ments and their mental accompaniments, we could have no continuing history
or character.").
404 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 9:389

A similar point applies with respect to redress. If Beth suc-

cessfully takes the mug back, that is a good outcome; but it is still
true that Allen is in a different moral position.88 Had he felt re-
morse and returned the mug himself, he would have done more to
reverse his own wrongdoing, and he would be better for it.89 There
is always cause for regret when we commit a wrong-as Gardner
notes, there is an inevitable rational remainder 90 -but the proper
extent of that cause for regret will vary depending on whether the
author of an allocation back is the wrongdoer or someone else.91
The authorship question gets at a fundamental, substantive dis-
tinction between different types of justice in allocation back. 9 2

B. Promises and the Expectation Remedy

If we revisit the expectation damages remedy, focusing now

on the right holder's side of the equation, we can see why Oman's
critique misses the mark. 93 Yes, it is true that promisors may
sometimes owe an apology rather than an ex post performance-but
even in these cases promisees may be able to demand something
more. 94 Imagine a promisor who breaks his word and says: "I'm sorry,
can't you give me a break?" The promisee then responds: "I accept
your apology, but I still need you to do what you promised." There is
nothing incoherent in the promisee's response, even if an apology was
the appropriate thing for the promisor to offer, and even if it would
have been better for the promisee to just accept the apology and move
on. The promisee is free to be a stickler for her rights, and promissory
morality often shows an asymmetry between what the promisor (and
promisee) ought to do and what the promisee gets to demand.9 5

88 See Gold, Redressive Justice, supra note 75, at 193.

89
Id.
9 See Gardner, supra note 53, at 34-37 (indicating that we can never cancel
out the fact that we have committed a wrong).
91 See Gold, Redressive Justice, supra note 75, at 187-88.
92 See id. at 195.
9 Cf. OMAN, supra note 1, at 118-19.
94 See id. at 118.
9 Cf. Benjamin C. Zipursky, SubstantiveStanding, Civil Recourse, and Cor-
rective Justice, 39 FLA. ST. U.L. REV. 299, 335 (2011) [hereinafter Zipursky,
Substantive Standing] ("Relatedly, the existence of a right to demand ameliorative
conduct does not entail the existence of a duty to supply ameliorative conduct absent
such a demand.").
2018] CONTRACT, PROMISE, AND REDRESS 405

Even if moral doubts counsel against a right holder obsti-

nately insisting on her rights-perhaps for reasons of mercy or
forgiveness-those concerns are not necessarily inconsistent with
the right holder getting to stand on her rights.96 Morality is often
thought to allow for rights to do wrong, and a discretion to act
wrongfully plausibly extends to promissory morality. 97 If We con-
sider Oman's apology example, this is a setting where a contrac-
tual right holder, as a matter of promissory morality, may get to
insist on a "next best thing" remedy, even though a more virtuous
choice would be for him to accept the apology. When we shift from
the perspective of the promissory wrongdoer to the perspective of
the promissory right holder, the moral answer must take into ac-
count not only how the promisee ought to act, but how he should
get to act. If the law takes into account moral rights to do moral
wrong, a right holder may insist on far more than an apology even
in settings where the apology ought to be accepted as sufficient.
It is likewise true that expectation damages may be a less than
fully adequate substitute for performance in cases involving unique
services. 98 But contracts that implicate unique services are also the
kind of contracts that raise moral concerns about when a right holder
should be able to legitimately coerce, and in what fashion. 99 It is not
always morally acceptable for one private party to coerce another,
and promissory morality has different things to say with regard
to the conduct of right holders and duty bearers. Consider a case

96 Whether the law should let people be sticklers for their rights or even
assist them in doing so is a complex problem. For discussion of that question,
see Dennis Klimchuk, Equity and the Rule of Law, in PRIVATE LAW AND THE
RULE OF LAW 247 (Lisa Austin & Dennis Klimchuk eds., 2014); Andrew S. Gold,
Equity and the Right to Do Wrong, in PHILoSoP-IuCAL FOUNDATIONS OF THE LAW
OF EQUITY (Dennis Klimchuk, Irit Samet & Henry Smith eds.) (forthcoming).
9 For helpful discussion of moral rights to do moral wrong, see generally
JEREMY WALDRON, A Right to Do Wrong, in LIBERAL RIGHTS: COLLECTED PAPERS
1981-1991, 63 (1993); David Enoch, A Right to Violate One's Duty, 21 LAW & PHIL.
355, 378-80 (2002); Ori J. Herstein, Defending the Right to Do Wrong, 31 LAW
&

PHIL. 343 (2011). Note that if courts are assisting in a right holder's morally
wrongful conduct, this is not necessarily inconsistent with the idea that courts are
doing justice. See Andrew S. Gold, Justice, Redress, and the Right to Do Wrong, in
EQUITABLE COMPENSATION AND DISGORGEMENT OF PROFIT 41, 60-61 (Simone
Degeling & Jason NE Varuhas eds., 2017) [hereinafter Gold, Right to Do Wrong].
98 See OMAN, supra note 1, at 119.
9 Cf. Andrew S. Gold, Considerationand the Morality of Promising, in Ex-
PLORING CONTRACT LAw 115 (Jason W. Neyers, Richard Bronaugh, and Stephen
G.A. Pitel eds., 2009) [hereinafter Gold, Morality of Promising].
406 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 9:389

involving unique services, such as a famous artist who has promised

to paint a portrait. If he breaks his word, something like expecta-
tion damages may be all that the promisee can legitimately coerce. 100
It would not be okay for the promisee to simply make the artist paint.
When we break a promise, we often ought to perform after the fact,
but it does not follow that a promisee should always be able to force
us to perform. 10 1 Depending on context, expectation damages may be
the most that a promisee's moral enforcement rights will permit.

C. The StandingIssue

Now, it might be argued that there is still a difficulty here, be-

cause we still need to address the special standing that plaintiffs
possess. Ordinarily, only contractual promisees can sue. 102 Yet
Oman's view that promissory morality does not match up with this
standing doctrine is puzzling. Mainstream theories of promissory
morality suggest that promisees do have a special standing to make
demands on promisors.1 03 Private rights of action parallel this feature
of promissory morality; indeed, private rights of action are generally
unavailable to individuals who lack this moral standing. 104 This
suggests that promissory morality could be central to contract law.
For example, Margaret Gilbert's work on promissory morality
suggests that promisees have a special standing not shared with
the general population.105 She imagines a case in which she has made
a promise to the reader. On Gilbert's understanding, "IfI were to al-
low that I owe you performance, then I would recognize that you
have the standing to upbraid me for nonperformance, or to insist on
performance. Before the fact you could pressure me, saying in effect:
'Give me that! It's mine!"".'O Third parties may also have something
to say, but she notes that their standing is importantly different:

100 Nothing in the present Essay rules out the possibility of indeterminacy
in the "next best thing" that a promisee can morally insist upon. The precise
form that expectation damages take-as opposed to an equivalent collection of
valuable assets-can be explained by institutional concerns such as accessibil-
ity and ease in measurement.
101 See id. at 125-26.
102 See OMAN, supra note 1, at 113.
103 See Gold, Morality of Promising,supra note 99, at 124.
104 Cf. id. at 116.
105 See Margaret Gilbert, Scanlon on Promissory Obligation: The Problem of
Promisees'Rights,101 J. PHIL. 83, 83 (2004).
106 Id. at 101.
2018] CONTRACT, PROMISE, AND REDRESS 407

It is true that a bystander could say, "Give her that! It's hers!"
The case in which I command you to give me what is mine is
special, however. The bystander's standing to command you to
give it to me can be questioned. My standing surely cannot be
questioned. In the bystander's case, the riposte "It's none of
your business!" makes sense. In my case, it does not. 0 7

This phenomenon should be recognizable to many of us, including

the reaction that, for bystanders, "it's none of your business."1 0 8
The social practice of promising incorporates the idea that a prom-
isee has a special standing, and promissory morality plausibly in-
cludes this same feature.
We can reach a similar conclusion if we build on Stephen
Darwall's account of the second-person standpoint in morality. 109
Darwall's famous example involves a foot-stomping episode. 110 When
someone non-consensually stomps on your foot, this wrong has
significance for anyone in the moral community; but it also impli-
cates a specific relationship between the wrongdoer and the victim. 111
As Darwall explains:
In addition to there being weighty reasons against others step-
ping on your feet, indeed, in addition to members of the moral
community having the standing to demand that people not step
on your feet, if you have a right, then you have standing to make
a special demand against people who might step on your feet-you
have the authority to resist, claim compensation, and so on. 112

Since promises are ordinarily understood to create moral

rights in a promisee, it is not surprising that promissory morality
should recognize this special standing in appropriate cases. Ad-
mittedly, one might see morality in general, or promissory morality
in particular, from a different perspective. But if we are seeking
to interpret contract law in light of conventional understandings
of promissory morality, these accounts are serious contenders.

107 Id
108 Jd
109 See STEPHEN DARwALL, THE SECOND-PERSON STANDPOINT 5 (2006).
110 Id
111 Id. at 8-9.
112 See id. at 18. A related point is developed in Stephen Darwall, Law and
the Second-Person Standpoint, 40 LOY. LA L. REV. 891, 891-92 (2007). This per-
spective also appears more broadly in Joel Feinberg's account of a claim right.
See Joel Feinberg, The Nature and Value of Rights, in RIGHTS, JUSTICE, AND
THE BOUNDS OF LIBERTY 143, 150 (1980).
408 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 9:389

If anything, promissory concepts are better situated to ex-

plain private standing doctrines than a market-based account, and
especially so if private standing is linked to a form of attack on the
defendant (as Oman argues that it is).11 3 'The Dignity of Commerce
explains private standing as a substitute for violent patterns of
retaliation. 114 This is a possible explanation, but unlikely.11 5 While
one can bring a market justification together with a world in which
contracting parties are tempted by bloody revenge, the two perspec-
tives are an awkward fit. The average person confronted with a con-
tract breach in today's world is likely to want payment, goods, or
services-not vengeance. 116 To the extent we focus on the way courts
tend to think, it also seems doubtful that a substitute-for-bloody-
revenge picture is what modern courts have in mind. 117 A retalia-
tion-based theory could be right, even so. That said, an account that
explains private standing from the perspective of promissory mo-
rality is more straightforward, both as a matter of concepts and
as a matter of judicial psychology.

IV. THE CHALLENGE FOR REDRESSIVE JUSTICE

There is still a lingering concern, but it is different from the

concerns developed in The Dignity of Commerce. The reader may
have noticed that much of the above discussion emphasizes a spe-
cial standing to make demands. This kind of standing is certainly

H3 See OMAN, supra note 1, at 128.

114 See id. at 127.
11 5
Andrew S. Gold, The Taxonomy of Civil Recourse, 39 FLA. ST. U.L. REV.
65, 71 (2011) [hereinafter Gold, Taxonomy].
116 See id. ("Ordinary contract breaches are poor cases for vengeance, espe-
cially where the breach may be inadvertent or hard to avoid. Indeed, even the notion
of 'getting satisfaction' is a questionable fit for much of contract law."). This is not
to deny that some contractual breaches sting. See Tess Wilkinson-Ryan & David
Hoffman, Breach is for Suckers, 63 VAND. L. REV. 1003, 1005 (2010) (studying
the psychological impact of contract breaches). Nor is it to deny that lawsuits
are adversarial. Oman recognizes that the retaliation picture "may seem odd,"
but emphasizes that "[p]eople experience litigation as an aggressive action."
See OMAN, supranote 1, at 126. This insight is accurate, but it is not enough to
sustain the argument. Rights enforcement is aggressive but frequently not retal-
iatory, and in contract cases the aggression involved is a poor fit for retaliation.
117 Gold, Taxonomy, supra note 115, at 71.
2018] CONTRACT, PROMISE, AND REDRESS 409

an important moral feature, and recent work has emphasized the

importance of a standing to make demands, or to complain about
a wrong, for both tort law and contract law.1 18 For some, private
rights of action may even be understood in light of this feature.11 9
Yet, on its own, a wronged party's standing to make demands is
not a perfect fit for a standing to pursue coercive legal remedies.
The moral standing to make demands is a starting point, but
it cannot be our endpoint because that type of standing is overin-
clusive. For example, an ordinary promise to have lunch creates
moral obligations, and it does give the promisee a special standing
to make demands if the promise is broken; but you don't get to force
someone to have lunch with you if they refuse.1 20 The plaintiff must
also hold a moral enforcement right, and this right can't be dem-
onstrated merely by showing that something is owed to her or that
she gets to demand compliance after the fact.121 A redressive justice
approach thus presents us with the following challenge: we must
locate a basis for thinking that the plaintiff holds more than a
moral right to a given outcome (e.g., a right to a promised perfor-
mance) or even a right to demand that outcome.

118 See Zipursky, Substantive Standing, supra note 95, at 332 ("The more
general point is that the fact of having been wronged by another generates not
only a basis for complaining of having been wronged by the other, but also a
basis for a demand for ameliorative conduct by the wrongdoer."); Nicolas Cor-
nell, A Complainant-OrientedApproach to Unconscionability and Contract Law,
164 U. PENN. L. REv. 1131, 1133 (2016) (emphasizing a contract right holder's
standing to complain about a wrong). This work also invites a clarification. Cornell
appears to believe I support the idea that coercion is automatically available
post-wrong. See id. at 1166, n. 146 (distinguishing my account because "it is not
clear ... that, absent a state institution like contract law, someone would have
a right to coercively extract expectation damages; having been wronged does
not automatically give a person the right to coerce"). But my central point is
that having been wronged does not automatically give a person the right to coerce;
the main question on my account is the question of when, as a contingent matter,
this right to coerce will exist.
119 Cf. Zipursky, Substantive Standing, supra note 95, at 311.
120 See Gold, Morality of Promising, supra note 99, at 127 ("A moral right to
performance of a promise could mean the possessor of the right has standing
to demand the other party meet the obligation, and to rebuke a failure to perform,
or it could mean the possessor of the right has standing to demand performance
and also, if performance is not forthcoming, to physically coerce the other party
to meet the obligation.").
121 See id. at 124.
410 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 9:389

One way to determine that promissory rights are apt for

coercive enforcement is to find that the rights at issue are owner-
ship rights. 122 If we have a proprietary (or at least property-like)
interest in contractual performance, this suggests the kind of re-
lationship that can support legitimate exercises of force.1 23 People
can forcefully protect themselves in self-defense cases, and they
can also forcefully protect their property.1 24 In fact, the doctrine
of recaption of chattels extends this enforcement right to the ex
post realm.1 25 If someone steals your wallet from you, you can
chase after them and rightfully grab it back. For many of us, this
is morally legitimate conduct by the right holder.1 26 It is, likewise,
ordinarily considered a fitting exercise of State power when the
State acts on our behalf to protect our property rights. If contract
rights are proprietary, that is a prima facie basis for thinking en-
forcement is appropriate. 127

122 See, e.g., id. at 126. Another possibility is that the legal system's choice
to provide for enforcement will help justify enforcement in appropriate cases.
For example, even if contracts under seal (without consideration) would not be
suitable for coercive remedies in a state of nature, they might be legitimately
enforceable when a legal system has provided for this result, and the promisor
has made a promise in light of that legal backdrop. That said, the moral anal-
ysis in such cases involves more than just the State's imprimatur. Questions
of consent, for example, would still be relevant.
123 See, e.g., Gold, Property Theory, supra note 9, at 46 (discussing this pos-
sibility).
124 See, e.g., Zo6 Sinel, De-CipheringSelf-Help, 67 U. TORONTO L.J. 31, 50-51

(2017) (discussing these types of self-help).

125 On the theoretical questions raised by recaption doctrine, see Andrew S.
Gold, Private Rights and Private Wrongs, 115 MICH. L. REV. 1071, 1074-76
(2017) [hereinafter Gold, Private Rights]; Sinel, supra note 124, at 46-51.
126
This may depend, however, on whether one adopts a Kantian perspective
on private law. Compare ARTHUR RIPSTEIN, FORCE AND FREEDOM: KANT'S LEGAL
AND POLITICAL PHILOSOPHY 146 (2009) (describing the Kantian view on unilateral
choices regarding the entitlements of others), with Victor Tadros, Independence
Without Interests?, 31 OXFORD J. LEGAL STUD. 193, 202-06 (2011) (critiquing this
perspective). That said, I have doubts whether the Kantian account adequately
fits private law doctrine. See generally Gold, PrivateRights, supra note 125.
127 This challenge has also been analyzed in terms of the harm principle.
See, e.g., Stephen A. Smith, Towards a Theory of Contract, in OXFORD ESSAYS
IN JURISPRUDENCE (FOURTH SERIES) 107, 120-29 (Jeremy Horder ed., 2000)
("On the right-creation view of contract, a contract creates what is in effect a
property right in the promisee, albeit a property right in the performance of an
act."); STEPHENA. SMITH, CONTRACT THEORY 72 (2004) (suggesting the import of
2018] CONTRACT, PROMISE, AND REDRESS 411

The question then is whether contract rights have the correct

features to count as proprietary or property-like. We need something
more than just a promisee's standing to demand performance or a
remedy. Why think this added proprietary feature exists in the con-
tractual setting? One answer draws on promissory morality itself.128
Contracts generally involve conditional promises; these are promises
that bind us to perform if their terms have been met but not be-
fore. 129 Suppose that these conditions have been met by a promisee's
bargained-for conduct. Significantly, this places the promisee in a
different relationship to the promise from the one she occupied
before. She has acted on the promise, working to make its terms
apply, and this changed relationship can implicate principles of
just property acquisition.130
Principles of just property acquisition will admittedly take
different forms for different theorists. 13 They are sufficiently con-
tested that it is unlikely consensus will be reached, and I will not try
to demonstrate which approach is best. Each approach is controver-
sial, in some cases for good reason. What I hope to show for present
purposes is simply that the structure of contractual relationships
matches reasonably well with several of the leading approaches
to property acquisition. 132 Some candidates are developed below
to help illustrate the core idea.
We might think that a Lockean approach based on a mixing
of labor with the desired thing helps to explain why we should own
a contractual performance.13 3 This is a labor-desert theory, based on
the interactions between the would-be owner and the acquired prop-
erty. In Locke's famous language: "Whatsoever ... he removes out
of the state that nature hath provided ... he hath mixed his labor
with, and joined to it something that is his own, and thereby makes

owning rights to performance). Note also that Smith suggests a property-based

account of contract rights without adopting a transfer theory; both promise
theories and transfer theories may thus look to property theory for guidance.
128 See, e.g., Gold, Morality of Promising, supra note 99, at 126.
129 See RAZ, supra note 74, at 174-75 (noting the link between conditional

promises and agreements).

130 See Gold, Property Theory, supra note 9, at 5.

131 See id. at 34-42.

132 For further discussion, see id. See also infra text accompanying notes 133-47.

133 See, e.g., Gold, Property Theory, supra note 9, at 34-35.

412 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 9:389

it his property." 134 We may conclude that the promisee, having la-
bored to attain the promised performance by acting to meet the
promise's terms, has mixed her labor with the acquired property-
and therefore that she rightly owns the promised performance. 135
One could also rework a Lockean theory so that the "mixing
labor" argument concerns the acquirer's identification of his person-
ality with the relevant thing.13 6 As Karl Olivecrona notes, "We can
have a feeling of things being so intimately connected with ourselves
that they are part of our very selves. Being deprived of such objects
represents something more than an economic loss. It is experienced
as an attack on the personality itself."1 37 From this perspective, the
contractual promisee may be understood to identify with the prom-
ised performance in light of her efforts to meet a conditional prom-
ise's terms.138
In some contexts, we might adopt a capture or first-possession
theory of property acquisition.1 39 Consider the case of a unilateral
contract, where the first person to meet the terms of the promi-
sor's offer will obtain a right to a payment of $1,000. In such a
case, if Jane is able to meet the terms of the promise before any-
one else, she has brought it under her control. In a sense, we can
say that she has captured the promise, occupying a relation to it
that is roughly analogous to the relation that an individual has

134 See JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT: AN ESSAY CON-
CERNING THE TRUE ORIGINAL, EXTENT, AND END OF CIVIL GOVERNMENT (1681),
reprintedin JOHN LOCKE: POLITICAL WRITINGS 261, 274 (David Wootton ed., 2003).
135 It should be noted that some of the classic concerns with a "mixing labor"

theory are less compelling in contractual contexts. For example, the contractual
acquisition is not the result of a unilateral act as between the contracting par-
ties. In addition, while the value of the promisee's labor may be far less than
the value of the thing acquired, in contract cases the promisor is the one who
decided to allow for such an acquisition. For discussion, see Gold, PropertyTheory,
supra note 9, at 35--37.
136 See, e.g., id. at 37.
137 See Karl Olivecrona, Locke's Theory of Appropriation, 24 PHIL. Q.
220,
224 (1974). Jeremy Waldron expresses doubts about this approach. See JEREMY
WALDRON, THE RIGHT TO PRIVATE PROPERTY 195 (1988) (noting that people
sometimes identify with property owned by others). For a response in the con-
tractual setting, see Gold, Property Theory, supra note 9, at 37 n.178.
138 See Gold, Property Theory, supra note 9, at 38.
139 For discussion of first-possession theories of property acquisition,
see
Richard A. Epstein, Possessionas the Root of Title, 13 GA. L. REV. 1221, 1224-25
(1979). See generally Carol M. Rose, Possessionas the Originof Property, 52 U.
CHI. L. REV. 73 (1985).
2018]1 CONTRACT, PROMISE, AND REDRESS 413

when they capture a wild animal. 140 Unlike capturing an animal,

however, the promise itself sets its own terms for what will suf-
fice. The result, again, is a claim of ownership.
Alternatively, we might be drawn to a more Hegelian point of
view-i.e., we might agree with an embodiment theory of acquisi-
tion. 14 1 In that case, we are looking for a certain relation between the
acquirer's will and the acquired object. 142 From this perspective, we
acquire something if that thing is now intelligible in terms of the ac-
quirer's will; property is acquired when the acquirer's will is embod-
ied in the thing acquired. 143 As Jeremy Waldron helpfully elaborates:
If the object is inanimate (say, a piece of marble formed into a
statue) then the aspect of the object which may be understood
only by reference to my will is one of its physical properties-
its shape, for example. If the object is organic, then maybe it is
not merely some property which is understood in this way but
also some ongoing process in the object .... 144

This too is a kind of relationship that may come into exis-

tence where a promisee has met the terms of a contractual prom-
ise. 145 The promisee has worked her will on the promise by meeting
its terms, and its bindingness is intelligible in light of her conduct. 146
Again, these are just candidate theories, and the reader may
find more than one of them appealing-or perhaps be drawn to a
different view altogether. The important point is that principles
of just property acquisition that apply in other settings have ana-
logues that operate in the setting of contractual promises. 147 In those
contexts where a promisee has provided the contractually set form
of consideration, the promise at issue has been made binding. Its

140 See Gold, Property Theory, supra note 9, at 39 nn.183-84.

141 See G. W. F. HEGEL, ELEMENTS OF THE PHILOSOPHY OF RIGHT § 44, at 75-76
(Allan W. Wood ed., 1991).
142 See id.

143 See id.

144 See WALDRON, supra note 137, at 364.

145 See Gold, Property Theory, supra note 9, at 41.

146 See id.

147 The notion that one can own a contractual performance also has a long pedi-

gree. See, e.g., IMMANUEL KANT, THE METAPHYSICS OF MORALS § 20, at 93 (Mary
J. Gregor trans., 1991) ("By a contract I acquire something external. But what is it
that I acquire? ... what I acquire directly by a contract is not an external thing but
rather his deed, by which that thing is brought under my control so that I make
it mine.").
414 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 9:389

terms have been met. This change in status does something more
than simply activate a promise because it also has bearing on the set
of rights held by the promisee.' 4 8 It means that the promisee has
an interest in performance that is different from the interest held
by an ordinary, non-contractual promisee; it is legitimately en-
forceable at her option.149 Consideration doctrine is thus a reflec-
tion of what it takes to justify enforceable promissory rights. 150
In supporting the consideration doctrine, this approach is
also well within the mainstream. Granted, Oman contends that
supporters of the consideration doctrine are few and far be-
tween.1 5 ' Yet the doctrine actually has a number of defenders,1 5 2
and the recent trend in contract theory favors the consideration doc-
trine, with accounts by Peter Benson, 5 3 Curtis Bridgeman,1 54
Robin Kar,155 Daniel Markovits,e 56
and myselfI 5 7 all incorporating it.

148 See Gold, Property Theory, supra note 9, at 40.

149 See, e.g., Gold, Morality of Promising, supra note 99, at 126.
150 See, e.g., Gold, Property Theory, supra note 9, at 62.
151 See OMAN, supra note 1, at 110 ("For understandable reasons, the doc-
trine of consideration has few defenders.").
152 See Peter Benson, The Idea of Consideration, 61
U. TORONTO L.J. 241,
268 (2011); Curtis Bridgeman, Contracts as Plans, 2009 U. ILL. L. REV. 341,
351 (2009); Gold, Property Theory, supra note 9, at 43; Robin Kar, Contract as
Empowerment, 83 U. CH. L. REV. 759, 761 (2016); Daniel Markovits, Contract
and Collaboration, 113 YALE L.J. 1417, 1420-21 (2004).
153 See Benson, supra note 152, at 268 ("My argument, therefore, is simply
that the promise-for-consideration relation, which actually constitutes contract
formation, can be reasonably construed in terms of ownership and a transfer
of ownership, and that it must be possible to so view formation if the law's
characterization of expectation damages as compensatory is to be vindicated.").
154 See Bridgeman, supra note 152, at 380-81 (noting that the consideration
doctrine "makes perfect sense" if we view contracts as plans).
155 See Kar, supra note 152, at 762 ("Contract as empowerment offers a

novel and more compelling account of the consideration requirement than ex-
ists in the current literature.").
156 See Markovits, supra note 152, at 1487-88 ("The consideration doctrine,
and in particular the doctrine's formal emphasis on bargains, therefore serves
as a useful touchstone for identifying obligations to which the collaborative
view of contract applies.").
157 See Gold, Property Theory, supra note 9, at 43 ("The doctrine of consid-
eration reflects the need for a promisee to act upon the contractual promise
such that its conditions are met. It is a means for a just acquisition of the prom-
isor's future performance.").
2018] CONTRACT, PROMISE, AND REDRESS 415

These accounts draw on a number of different theoretical perspec-

tives, with inspirations ranging from Hegel, to Rawls, to Locke, to
Bratman.s 58 Given the wide set of theories capable of justifying

the consideration doctrine and the variety of resources they are able
to build upon, we might even think that a good interpretive account
of contract law needs to explain why the consideration doctrine
makes sense.1 5 9
It is not clear how the account in The Dignity of Commerce
would address the full range of plausible justifications for the con-
sideration doctrine, as the book's focus is elsewhere. In light of
their unique features, each pro-consideration theory likely calls
for its own response. For our purposes, the key insight is that the
consideration doctrine is not only defensible, but defensible from
a perspective that draws on promissory morality.160 Historically,
scholars who support a promise-based approach to contract law
have been troubled by the consideration doctrine. 16 1 Charles
Fried's work is a good example, as is Seana Shiffrin's recent writ-
ing. 162 If, however, promissory morality is approached from the
perspective of a promisee's standing to enforce, the moral land-
scape looks very different. Doctrines that are hard to explain when
we just look at a promisor's obligation to perform (or to remedy a
non-performance) are more readily understood if we look at a prom-
isee's enforcement rights.

158 See Benson, supra note 152, at 267 n.58; Bridgeman, supra note 152, at
345; Gold, Property Theory, supra note 9, at 27; Kar, supra note 152, at 767
n.26; Markovits, supra note 152, at 1451.
159 Cf. Bridgeman, supra note 152, at 380-81 (noting advantages to a theory
that can explain the consideration doctrine). If no plausible theories were avail-
able, matters might be different. But given that the consideration doctrine is a
core feature of contract law, the possibility that it can be explained from a va-
riety of perspectives puts added pressure on those interpretive theories that
are incapable of explaining it.
160 I have suggested previously that these enforcement rights are a part of
promissory morality. See Gold, Moral Rights, supra note 50, at 1891. One might
contend that such enforcement is supported by principles of just property ac-
quisition, and that the relevant moral principles are not promissory in nature.
I am unsure how to draw an uncontroversial boundary between these subparts
of moral reasoning. For present purposes, it should not matter if this analysis
is considered a part of promissory morality as such, or the result of a different
set of moral principles that incorporate the principles of promissory morality
as part of their operation.
161 See FRIED, supranote 9, at 35; Seana Valentine Shiffrin, The Divergence
of Contract and Promise, 120 HARV. L. REV. 708, 709-10 (2007).
162 See FRIED, supra note 9, at 21; Shiffrin, supra note 161, at 709-10.
416 WILLIAM & MARY BUSINESS LAW REVIEW [Vol. 9:389

CONCLUSION

Sometimes private law theories crowd out their rivals. If

one begins with the idea that everything in private law has to be
unified under a single principle, locating the most plausible prin-
ciple may be a first step toward ruling out alternative theories
based on other principles. Such unifying approaches need defend-
ing, however, and we need a basis for thinking that a proffered
explanation has vanquished its rivals. The idea that contract law
is justified by the value of virtuous markets does not give us any
obvious reason for ruling out additional justifications. It may even
seem to invite them, since contract law might advance virtuous
behavior by other means as well. The Dignity of Commerce appears
to leave room for other theories to succeed alongside it.
Note also that it is not enough to show that other theories
fall short as complete justifications for contract law. Suppose that
no other theory is up to the task. Even if there are no viable alter-
native theories that can justify contract law as a whole, it would not
follow that non-market values become irrelevant to a proper un-
derstanding of contracts, or else relevant only when those values
support markets. The absence of consent might operate as a side
constraint, or at least as a concern to be balanced against reasons
for supporting markets. Likewise, promises may help constitute
contracts, even if promissory morality cannot justify contract law
on its own. In order to fully understand contract law, we might
need to figure out when promises are valid, what their scope is,
and how they affect moral rights.
Consider the problem of consent. To give an extreme exam-
ple, imagine a world in which virtuous markets could be advanced
if a certain percentage of the public were beaten up to "convince"
them to enter the right kind of contracts. This coercion is unac-
ceptable, and the resulting agreements should not be enforceable.
A principle that physically assaulting people is beyond the pale will
hardly justify contract law as such-it does not have the right fea-
tures to do that-but we can still think that such principles have
bearing on whether a contract should count as valid. And we might
think that this is, in part, because consent matters. Notice, moreover,
that the merits of this view can be separated from our interest in
market-based benefits. Many of us will conclude that such coerced
contracts should lack validity irrespective of the effect on markets.
Promissory morality may be relevant in a different way. It
is difficult to provide a convincing account of contract law that
2018] CONTRACT, PROMISE, AND REDRESS 417

just builds on promissory obligations to perform.16 3 Yet it is quite

possible to come up with theories of contract law that depend in part
on features of promissory morality. One might think, for example,
that contracts are best understood as a kind of transfer, and that
valid promises are partly constitutive of contractual transfers. 164 On
this view, a promise on its own simply isn't enough, but a promise
in combination with other things may account for many of the
law's features: the enforceability of contracts, the bilateralism of
contract law, the expectation damages remedy, the special stand-
65
ing of contractual promisees, and even the consideration doctrine.1
These points can be obscured by an understanding of cor-
rective justice that centers on the obligations of wrongdoers to re-
verse their wrongs. Applied to contracts, a corrective justice picture
tends to emphasize a promisor's duty to correct, and as Oman rightly
explains, such promissory duties often look quite different from
the expectation damages remedy.1 6 6 In other words, it is not just
that promissory morality is insufficient to fully justify contract
law, but also that a promisor's performance obligations are a mis-
match for the way that contract law functions.
Shifting to rights of redress can help solve this puzzle, and
in a way that preserves many of the core insights in The Dignity
of Commerce. A good theory of contracts may need to build on an
account of justice between individuals.1 6 7 Judges author opinions
that indicate that private law is intended to provide justice for the
parties in particular, with respect to their dispute. While correc-
tive justice is not a convincing answer-in part for reasons that
build on insights about promissory obligations-redressive justice
is a very good fit. The question, then, is when a right holder should
be able to undo the wrong she has suffered. In the case of contracts,
the wrong is a contractual breach, and the response to that wrong
tracks important features of promissory morality. Taking this kind
of justice seriously, moreover, will often have a beneficial side ef-
fect: it will advance virtuous markets. Of course, advancing markets
may also be an intended outcome. Intended or not, The Dignity of
Commerce helps us to see why that outcome is so important.

163 See OMAN, supra note 1, at 76.

164 See, e.g., Gold, Property Theory, supranote 9, at 5.
165 See id. at 6-7.
166 See OMAN, supra note 1, at 117-19.
167 This is true of most private law fields. For discussion of why, see Gold,
PrivateRights, supra note 125, at 1087-88.