Foundationalism and the Promise Theory

Abstract

This chapter defines the book’s main target: the ‘promise theory’ of contract law. It claims that the promise theory is a ‘foundationalist’ theory of contract law, according to which the promise principle plays a special normative role in justifying contract law rules and doctrines. What exactly this special role is has been left obscure in the literature. This chapter offers three plausible interpretations. First, there is ‘justificatory necessity’ or the idea that promise plays an essential or necessary role in the justification of each and every contract law rule or doctrine. Second, there is ‘justificatory primacy’, according to which the promise principle overrides or defeats all other principles in cases of conflict. And, finally, there is ‘justificatory presumptiveness’, according to which there is an epistemic presumption that when contract law diverges from promise it is prima facie unjustified.