Explaining Contract Doctrine
This chapter seeks to understand contractual doctrines from the perspective of the Rawlsian division of responsibility. First, against the idea that any effort to look at private law obligations as a coherent unit is worthless, I present a Kantian account of private law obligations. The foundational idea is that of personal independence. Then, I explain how that idea, together with the distinction between persons and things, explains the sense in which tort, contractual, and fiduciary duties are different from one another. These distinctions are the basis for the idea that a contract gives rise to a personal right—that is, a rightin personam—against the promisor to the performance of the contractual duties. I make my point by explaining that before the actual performance, the promisee acquires something through the contract, to wit, the promisor’s performance. I continue to explain the standard remedy for breach of contract in the common law, that is, expectation damages. Then, I explain the principle of no liability for mere nonfeasance in terms of the division of responsibility.