Defining Contracts and Promises in the Philosophical World - Essay Example

Contracts and Promises

In the philosophical world, one of the most common and hugely plausible ideas is that contracts are principally promises. The notion is that contracts are treated as special kind of promises, which partly enjoy legal protection based on their unique nature (Klass). However, the claim that promises are similar to contracts is defeated by a sufficient fact that binding promises are not enforceable contracts. The relationship between contracts and promises is comprehensively discussed by DoriKimel, who believes contracts are broadly similar but fundamentally different from promises. The assessment will seek to identify the facts that make the author feel that contracts are different from promises. Based on the analysis of Kimel’s argument, there are notable differences in intrinsic values attributable to contracts and promises, andunder the right circumstances, the role of trust in personal relationships and the value of personal detachment in contracts could be mutually reinforcing.

The role of the promises and contracts is presented as instrumental function, which gives rise to a much-desired form of reliability, enhances cooperation and coordination between parties. A closer analysis of the first part of DoriKimel's work reveals how the promises and contracts tend to fulfil similar functions. However, the two are put in practice through different approaches to achieve a specific function. DoriKimel identifies the appropriateness and applicability of promises, which is highly limited to situations of an existing and continuous personal relationship between parties. In such cases, the promises between total strangers are treated with exceptions, which could include the creation of contractual obligations. Contracts are created as critical tools for enhancing cooperation and mutual reliance between strangers.

The issues of enforceability and trust arise when demonstrating the intrinsic functions common to promises and contracts. Contracts are legally enforceable and are encouraged to enhance the degree of assurances that specific obligations owed to a party will be discharged. The enforceable nature of contracts significantly reduces the possibility of default or harm to parties in a contract. A breach of contract is associated with well-known and specific implications enforceable through robust legal systems and related institutions. The unwillingness to face hostile reactions or damage reputation on breach of promises plays a similar role to the enforceability of contracts. However, such fears do not provide equivalent levels of assurance in promises as enforceability builds on contractual obligations. The enforceability nature of contracts and expected levels of assurances in promises have a direct impact on parties in terms of the trust. DoriKimel identifies varying degrees of trust as critical for both promises based on personal relationships and performances based on contractual terms. The enforceable nature of contractual obligations enhances confidence in performances but reduces the levels of trust between parties.

Trust plays different roles when called upon to fulfil specific functions based on either promises or contracts. The differences can be explained in terms of the sense in which parties are expected to trust their counterparts. In terms of keeping the promises, the author convincingly describes trust as a context-sensitive term, which depends on a combination of belief and positive attitudes based on specific attributes of the subject party. The attributes are, in turn, influenced by specific aspects such as personal skills, capacity, or desirable character traits. As such, subjects are only trusted to keep promises if they are seen to possess desirable character, goodwill, decency, and favourable moral light. Besides, it is not possible to create trust to keep promises between strangers. As such, decency, goodwill, and moral factors of trust in promises are replaced by enforceability in contracts. Trusts in contractual terms are a belief that the other party will keep their part of the contract, which is rather trivial and different to promises. The implications are that the contractual obligations do not entirely exclude personal trust in its less trivial sense, but creates a framework that offersan additional source of reassurance. In terms of promises, trust is enough to instil the necessary confidence in the capacity and moral willingness to fulfil such promises. In situations of considerable ignorance of personal attributes of parties, the legal framework is considered as critical to obtaining sufficient levels of reassurance.

Promises and contracts are associated with different capacities to fulfil the intrinsic value of the practice. The intrinsic value describes the desirability of special bonds and relations between parties, which are primarily influenced and established through participants' selection. Kimel does not appear to believe that similarities of intrinsic value that exist between contracts and promises. The explanation of the observations is based on an argument that in practice, contracts do not create better or enhanced special bonds or relations as compared to the practice of promises. It has been adequately demonstrated that contractual obligations are necessitated by a prior lack of pre-existing relationships between strangers. Although the creation of contracts is not primarily dependent on the pre-existing relationships, special bonds are inevitably established once parties have entered into a contract (Kimel 66). The new relationship created through established contracts could have similar intrinsic value to valuable relations created through promises. The promises create potentially extra and valuable contributions to personal relationships. However, it is entirely wrong to argue that contracts, unlike promises, do not provide any form of intrinsic value to the parties.

The intrinsic value in a contract is different from the intrinsic value of a promise.Kimel notes that contracts are characterized by threats of specific legal implications or sanctions. The legal threats negate the role of trust in the formulation and implementation of contractual obligations. However, contracts provide an intrinsic value in the form of personal detachment. The revelation that personal relationships and personal detachment are valuable tools is reasonably surprising if used in the right circumstances. However, considering that threats of sanctions characterize contracts, the legal institutions provide an opportunity for parties to create even more constructive relationships. The differences between promises and contracts arise because trust is the intrinsic value of the former, while the detachment is the intrinsic value of latter.

Kimel uses the employment contract of an academic as a paradigmatic illustration of his observations. The contract is presented as one that provides a circumscribed field that provides the professor and a department to create relations. The professor would proceed to engage in valuable personal relationships after the contractual obligations are complete. Such relationships included those where normative values such as trust were continuously permeated. The illustration demonstrated that the contract had facilitated the establishment of a detached forum, which encouraged the definition of a new baseline connection between the department and the professor. The initial contract would then lead to the creation of other personal relationships. In such a situation, the legal sanctions tied to the contract would never negate the trust established through personal relationships.

The expectations damages are different from specific performances. Expectation damages refer to forms of compensation awarded to the harmed party due to a breach of contract(Theodore&Miller29). The breach must resultin the loss of what the party reasonably expected from the transaction if it had occurred. Therefore, the primary aim of providing expectation damages includes placing the harmed party in the position they would have enjoyed if the transaction had taken place. The law of contract provides two forms of remedies in cases of breach of contracts. The specific performance is a form of remedy in which the courts of law forces or orders the breaching party to complete or perform their obligations under as per the contractual obligations.

Diverse accounts can be applied to provide reasonable explanations for why the contract law awards expectation damages as a standard remedy. Kimel had made significant efforts to provide insights that would solve the long-standing challenge in contract law that relates to the award of expectation damages ahead of specific performances. He begins to address the challenge by recognizing specific performance as the primary theoretical remedy. The argument borrows heavily from the harm principle concepts from John Stuart Mills when preventing the granting of specific performance. Kimel supports this position by maintaining that expectations damages are acceptable substitutes to the harmed party. Granting expectation damages allows the harmed party to fulfil their ultimate goals, while at the same time avoiding performance remedies likely to cause unnecessary harm to the breaching party.

Significant similarities and differences exist between a promise and a contract. The two practices apply similar principal methods in fulfilment of the instrumental function. Promises are statements whose normative forces are highly dependent on trust. Unlike promises, contracts are characterized by external sanctions administered through legal institutions. Personal bonds and relations are promoted through the normative basis of trust, which, according to Kimel, forms the intrinsic value of promises. Contracts are different, and the content of the contractual agreement could negate the critical role of trust in such contracts. Strangers or parties to a contract can still enjoy the intrinsic value of constructive association through personal detachment.Kimel provides convincing distinctions between promise and contract. Trust is the intrinsic value of promises, while detachment provides value on the contract. Kimel’s observations present useful and new directions for promissory theories of contracts and promises. The author provides significant contributions to resolve the long-standing issue related to remedies under contract law. The harm principle forms the basis of the analysis of essential doctrines in the law of contract.

The discussions made based on harm principles are often knowledgeable but relatively shallow. There is an overreliance on the harm principle, implying that Kimel does not appear to consider the specific nature of rights created through the contractual obligations. The appropriateness of the author’s conclusion on issues related to remedies of contract law is hard to determine since such arguments appear to stay above the judicial determinations made on a day-to-day basis. In general, Kimel demonstrates the differences in intrinsic functions attributable to contracts and promises but identifies that under the right circumstances, trust in personal relationships and the value of personal detachment in the formercould be mutually reinforcing.