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Philosophical Foundations of Contract Law$
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Gregory Klass, George Letsas, and Prince Saprai

Print publication date: 2014

Print ISBN-13: 9780198713012

Published to Oxford Scholarship Online: March 2015

DOI: 10.1093/acprof:oso/9780198713012.001.0001

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Does a Promise Transfer a Right?

Does a Promise Transfer a Right?

(p.78) 5 Does a Promise Transfer a Right?
Philosophical Foundations of Contract Law

David Owens

Oxford University Press

A number of authors from Grotius onwards have proposed that a binding promise transfers a right from promisor to promisee. The promisee now has the right, previously possessed by the promisor, to determine whether the promisor performs the act mentioned in their promise. This proposal runs into problems of detail. The chapter first reformulates the theory so as to avoid these problems. It then considers a more fundamental difficulty raised by Hume and argues that the reformulated theory succumbs to Hume’s critique. The point is illustrated by way of a detailed discussion of the difference between consent and choice. Finally, a new theory of promising based on the idea of an authority interest is proposed.

Keywords:   Hume, Grotius, transfer, authority, promising, consent, choice

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