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Article

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New Rules for Promissory Fraud (with Gregory Klass), 48 Arizona Law Review 957 (2006)

Abstract

Experience is complex. The job of theory is to simplify and unify, to abstract from the blooming, buzzing confusion and find some basic rules we can use to guide us through it. Contract theory is a prime example. Theorists treat legally binding promises as elemental speech acts, utterances that accomplish one thing: put the promisor under an obligation to perform. This simplification has allowed contract theory to focus on the deep questions that follow: When do speech acts create such an obligation? How should we interpret the scope of the duty undertaken? What should be the legal consequences of its violation? These basic questions, along with a few others, have given rise to volumes of thought on how legal liability should be structured.

But abstraction has its costs. In the case of contract theory, the costs have included a tendency to ignore other aspects of the act of promising. Most notably, theorists have by and large ignored the fact that, in everyday use, a promise is often understood also to say something about the promisor's state of mind—namely, that she intends to do the act promised. This representation, like any other, might be true or false, and, if false, the promisor might be held liable for fraud.

Date of Authorship for this Version

2006

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