Considering Affective Consideration: Toward a Conscious Enforcement of (Some) Gratuitous Promises
81 Pages Posted: 30 Apr 2009 Last revised: 5 May 2015
Date Written: November 1, 2009
Abstract
This Article offers a new challenge to the un-enforceability of gratuitous promises, from the perspective of law and the emotions. It starts by illuminating the role of the emotions in the debate and exposes the way un-enforceability results from the historic and contemporary hostility of law toward (an erroneous view of) the emotions. It then proceeds to an interdisciplinary investigation of the specific emotions that play leading roles in gift promising: empathy and gratitude. This original investigation deeply problematizes the conventional denial of enforcement by demonstrating striking structural similarities between bargained-for promises and gratuitous promises. The Article concludes by integrating these interdisciplinary insights into law. It is argued that the similarities and differences discussed in the Article do not support the existing reflexive denial of enforcement of gratuitous promises, but rather justify some form of legal recognition. The Article then ends with a concrete suggestion to move from total refusal to enforce gratuitous promises to a cautious willingness to enforce them “consciously”: only in cases of existing intention to create legally binding promises. Beyond the theoretical and practical immense importance of the contractual question at hand, the Article suggests that by being more attentive to people’s intention the law can play a valuable and novel role of expressing and fostering the positive emotions that motivate humans to be other-oriented and generous.
Keywords: Contracts, Emotions, Gift, Empathy, Gratitude, Promises, Enforceability
JEL Classification: A12, D64, K12, K42
Suggested Citation: Suggested Citation