Sheer Force of Will: A Will Theory of Contract

In the intellectual history of contract law, one enduring idea is the “will theory”: the idea that the law of contract merely reflects the will or choice of the contracting parties. In the common law (as in the civilian tradition), this idea remains both influential and controversial. Almost all lawyers, judges, and scholars accept that the will of the parties must play some role in explaining contract law. However, they debate how encompassing, and how acceptable, that role is: the extent to which the will theory “fits” the legal doctrine that it purports to explain, and whether it provides a satisfactory justification for the institution of contract. In these debates the participants often talk past each other, because in the current scholarship there is no developed conception of what a will theory should look like. Instead, the will theory has been defined in large part by implication, through the attacks of critics who assume it is susceptible to their objections. This aim of this dissertation is to show that a will theory, formulated with appropriate precision, can explain and justify the core of the common law of contract. We can understand contractual obligation as arising through the sheer force of the contracting parties’ will.Ph