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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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Contract as Fact and as Reason

Contract as Fact and as Reason

(p.135) 8 Contract as Fact and as Reason
Philosophical Foundations of Contract Law

Charlie Webb

Oxford University Press

Normative practices, like law and like promising, have a dual aspect. They exist as practices—as things in fact said and done, attitudes and understandings in fact held, norms in fact endorsed and applied—and an inquiry into these practices may seek to understand them as they are, as they are realized, for better or worse, within particular communities. But for those within such communities, these practices answer to a distinct practical inquiry: what, given these facts, ought I to do? This question—the basic question faced by any judge, legislator, promisor, or promisee—cannot be settled simply by inquiring into the facts of these practices but requires, in all cases, a consideration of what are truly good reasons for action. These distinct inquiries can each provide the focus of a theory of law or of contracts or promises. But their distinctiveness means that any such theory must choose which of these inquiries it is to undertake. Getting clear on this allows us to get clearer on the relationship between promises and contracts and on what this relationship tells us, and what it doesn’t, about the distinct practical questions contract law raises.

Keywords:   contract, promises, reasons, obligation, interpretation, philosophy of law, methodology

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