Intent to Contract and Trust

Abstract

This chapter defends a republican reinterpretation of the intent to contract doctrine. According to the doctrine, for a contract to be legally binding the parties must have manifested an intention to be legally bound. This legal requirement sits uncomfortably with the ‘promise theory’. If Charles Fried was right that contracts are promises, why is this additional intention even necessary? That tension between the promise theory of contract or the ‘reflective’ view that contract should ‘mirror’ promise and the intention to create legal relations doctrine has led some to doubt the place of promise in contract. Dori Kimel, for example, says that the intent to contract doctrine is a portal between the realm of promise, where people are attached, and the realm of contract, where detachment prevails. This leads him to defend a ‘divisionist’ view of contract. But such dichotomies are misleading. Contract is not separate from promise. Nevertheless, although Fried was right to see that contract and promise serve similar ends, he failed to appreciate that they do so in distinctive ways. The republican view by being open to the variety of ends contract law might have, and the distinctive ways in which they might be interpreted and pursued, opens the door to a correct understanding of the intent to contract doctrine. Contract law on this view is one of the ways promise fulfils its function of securing the valuable good of trust-based cooperation and giving meaning and shape to human relationships.