Contractual liability and the theory of contract law

This article considers the character of contractual liability and its implications for theories of contract law. Contractual liability has seemed to legal theorists to stand in need of explanation because it is ‘strict’: a contracting party may be answerable for breach regardless of whether her conduct is faulty. In efforts to account for this approach, theorists have invoked a number of well-known general theories of contract, including Holmesian, economic, moral, voluntarist (or choice-based) and rights-based theories. The article contends that none of the existing theories is fully satisfactory. To develop an alternative account, the article suggests we should reconsider the nature of contractual liability in the common law, attending more closely to certain features that theorists have so far tended to overlook. Having done this we will be able to see that another very well-known general theory is capable of accounting for the standard of contractual liability: the theory of contract as promise.