The World of Contract and the World of Gift

Abstract

Under the donative-promise principle, a simple, unrelied-upon donative promise is unenforceable. In the past, this principle has been explained largely on the ground that a rule under which such promises were enforceable would involve significant process problems. In this Article, Professor Eisenberg develops two substantive bases for the donative-promise principle: (1) The world of gift would be impoverished if simple donative promises that are based on affective considerations, such as love or friendship, were folded into the hard-headed world of contract. (2) Where a donative promise is based on affective considerations, in the absence of reliance a donative promisee is morally obliged to release a repenting promisor. In the course of the Article, Professor Eisenberg shows why the principles that govern donative promises play a key role in both contract doctrine and the social significance of contract doctrine. For example, developments in the area of donative promises have been instrumental in leading to a new principle of contract remedies, under which the extent to which a promise is enforceable depends on the reason why the promise is enforceable. Professor Eisenberg also considers the major theses that have been put forward in recent commentary on donative promises, including claims that under present law all seriously made promises are enforceable by expectation damages.