New Scholarship: Ethan Leib, Contract as Vow or Oath

We are on a bit of a scholarship kick this week, with yesterday’s posts about Hanoch Dagan’s work on freedom of contract and our “Contracts Stuff” Vlog on the blog’s features about scholarship. It is too early to tell whether Ethan Leib‘s new piece, Contract as Vow or Oath, will become the kind of scholarly phenomenon suited to our “What’s All the Fuss About?” feature or if it will prove more appropriate for one of our “Teaching Assistants” posts. For me, it is like an ear worm. I read it, and now I can’t quite get it out of my head.

Professor Leib shares in this piece his discovery that “vows and oaths furnish a surprisingly illuminating window into contract.” We tend to treat vows and oaths as “non-legal mechanisms of self-binding” that are district from contractual promises. The bulk of Professor Leib’s paper is dedicated a wide-ranging and erudite history of oaths and vows. He draws on the socio-legal practices in ancient China, among the Biblical Hebrews and the Talmudic tradition, Mesopotamian civilizations, the Greeks, the Romans, and the early Christians.  He concludes that vows and oaths “were involved in commercial transactions, had a conditional and bilateral structure,” and had other, more specific features akin to those of modern contract law. He concedes that vows and oaths “contain the justification for their enforcement by an authority in a way ordinary promises do not.” On the other hand, if I’m reading him correctly, vows and oaths, traditionally understood, were always binding, while promises, outside of the context of exchange relationships, are not.

Professor Leib then shows that, even after the advent of the common law, oaths, vows, betrothals, pledges, and bonds continued to perform the role we tend to assign to promises in exchange relationships. When promise eventually emerged ascendent, it was embedded in a firmament furnished by oaths and vows, the preexisting devices of common commitment.

The Tennis Court Oath

The payoff comes in the paper’s fourth section. Professor Leib’s historical review shows that vows and oaths are more exchange-oriented and law-saturated than contracts scholars have appreciated. It follows that the law of contracts should not focus exclusively on promises but should also treat oaths and vows as bases for contractual obligations. Perhaps promissory theorists’ fundamental understanding of contractual exchange is lacking because they ignore the evolution from oath and vow to promise.

Professor Leib’s genealogical research can assist in thinking about the relationship of the role of fault in contract law, a subject that continues to yield conflicting views among contracts theorists. We have posted on the subject, here (covering a conference on the subject), here (reviewing Martha Ertman), here (reviewing Steven Feldman), here (reviewing Michael Pratt), here  (reviewing Chapin Cimino on virtue jurisprudence), and here (reviewing Brian Bix). The evolution of contracts doctrine from the normative scheme of vows and oaths can also provide an “unlikely and plausible conceptual explanation” for why contracts law  defaults to damages rather than specific performance.

Some modern contracts theorists recognize the legal normative valence of vows and oaths but limit its efficacy to the realm of public law. Professor Leib offers the counter-example of the Restatement Second’s § 90(2), which would enforce charitable subscriptions based on nothing more than a pledge. Recognizing contract as vow or oath could also reconcile the law of intra-marital or post-nuptial agreements. Some states refuse to enforce such agreements as contracts; others enforce them, sometimes with limitations. If courts had a better understanding of the roots of contractual obligation in the practice of vows and oaths, they might be more inclined  to recognize the enforceability of renewed marriage vows.

I have my own take on oaths in connection with originalist arguments about the judicial oath.  Professor Leib has reminded me that some oaths, such as jurors’ or witnesses’ oaths, clearly have legal effects. I’m just not convinced that those effects are a result of private legislation. Nor am I keen to muddy consideration doctrine by enforcing utterances that lack the magic ingredient of mutual reciprocal inducement or where that mutuality comes from some deep personal connection and thus should not be the stuff of contracts litigation. There is a fault line of formalism separating my take on this subject from Professor Leib’s, but depending on the angle from which I look at it, I cannot make out which of us is wed to formalism and which is committed to a substantive view of contract formation.