The moral obligation of promisors to keep promises is well-established. There are competing accounts for the obligation and a wide variety of limitations on it but most people find the notion fundamentally sound. In contrast, the obligation of promisees to forgive has not received much attention in moral philosophy. It has garnered even less consideration at the intersection of morality and contract law. It is thus helpful that Jean Braucher recently published a piece that begins with the observation that “a forgiveness principle is [a] conventional but under-articulated [aspect of] promissory morality.” Braucher bridges the gap between law and morality as she follows in the Wisconsin tradition of “law in action” made famous as the relational theory of contracts by Stewart Macaulay and Ian Macneil. Braucher criticizes both Charles Fried (“Contract As Promise”) and O.W. Holmes, Jr. (“The Path of the Law”) for their focus on what (appellate) courts say about law while ignoring what contract parties actually do.
Well, what usually actually happens when one party to a contract fails to perform? As any practicing lawyer and most people who have had contract disputes know, seeking legal redress is a distant last resort. As Braucher observes, “the expectation interest is decidedly not protected by contract law or the shadow of contract law in any robust sort of way in most types of contracts.” Yet private ordering--the market dominated by contractual exchanges--goes on. Why? According to Braucher, because of the strong moral sense of obligation.
Braucher is an intuitionist when it comes to accounting for this moral sense. From the same source, she identifies altruism, the virtue of voluntary sharing out of concern for our fellows. If, Braucher reasons, the State will on occasion deploy its coercive powers to remedy the vice of promise-breaching, why should those same powers not be used (or at least withheld) to vindicate the virtue of altruism? Which is exactly what bankruptcy is--a legal remedy that implements (or at least reflects) a moral principle. And while Braucher omits them from her analysis, we can at least in part account for many ordinary legal defenses to contract obligations (such as voidability on grounds of fraud, misrepresentation, undue influence, duress, mistake, and unconscionability as well as the implication of conditions) from the same resource.
I find moral intuitionism a very weak reed on which to base any moral conclusions. Nonetheless, we see in Braucher’s argument the basis of a principled response to Bridgeman’s monolithic focus on one side of morality, the obligation to keep one’s promise. The response need not--indeed should not--be to deny that a promise to pay even a corporation carries a moral obligation but to articulate and apply moral standards of promise-receiving to the same corporate entities.
Well, what usually actually happens when one party to a contract fails to perform? As any practicing lawyer and most people who have had contract disputes know, seeking legal redress is a distant last resort. As Braucher observes, “the expectation interest is decidedly not protected by contract law or the shadow of contract law in any robust sort of way in most types of contracts.” Yet private ordering--the market dominated by contractual exchanges--goes on. Why? According to Braucher, because of the strong moral sense of obligation.
Braucher is an intuitionist when it comes to accounting for this moral sense. From the same source, she identifies altruism, the virtue of voluntary sharing out of concern for our fellows. If, Braucher reasons, the State will on occasion deploy its coercive powers to remedy the vice of promise-breaching, why should those same powers not be used (or at least withheld) to vindicate the virtue of altruism? Which is exactly what bankruptcy is--a legal remedy that implements (or at least reflects) a moral principle. And while Braucher omits them from her analysis, we can at least in part account for many ordinary legal defenses to contract obligations (such as voidability on grounds of fraud, misrepresentation, undue influence, duress, mistake, and unconscionability as well as the implication of conditions) from the same resource.
I find moral intuitionism a very weak reed on which to base any moral conclusions. Nonetheless, we see in Braucher’s argument the basis of a principled response to Bridgeman’s monolithic focus on one side of morality, the obligation to keep one’s promise. The response need not--indeed should not--be to deny that a promise to pay even a corporation carries a moral obligation but to articulate and apply moral standards of promise-receiving to the same corporate entities.
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