hi folks and what met to contract a weak one this is the theory stuff we up to part two of the theory videos and we are now looking at promise theory so let's go back to our Prezi and have a look at promise theory okay so the main tenets of the promise theory is that you'll keep your promises you okay back on your word why should we do this what's the rationale for that because we'll get a little better and we'll get more reliable collaboration if in fact we are prepared to do the right thing and keep our promises background child's freed one of the many theories that prey around predominantly 1980 roast roast opponents in the 1980s it draws fairly unashamedly from the will theory in that the heart I guess of this theory also relies on the notion of the individual doing the stuff that's voluntary so contracts arise from college with promises between the parties rather than being imposed by the state afraid to seize that much more in the realm of tort law and contract law as being the voluntary self-imposed nature of obligations so it kind of adopts the freedom to contract mantra that was thrown around by the classical theorists contracts should be interpreted according to what was promised rather than imposing terms so in order to interpret a contract you've got to look at the promises that were made between the parties minimizing any scope to impose terms there so there's the freedom from contract mantra that we saw in classical theory it's inherently bound up with morality and freed is fairly unabashed about this not seeing as in any way to be sure from in terms of building this theory in fact it's it really is at the core of the theory so the main hallmark is the promise principle you are morally obliged to keep your promises and the force that makes your obligations binding is the fact that you are a moral person and you will say and to do what you have said you will say and do in contract or terms it means that you are morally not just legally but morally obliged to perform your contractual obligations as I said before it overlaps with the will theory and it's unabashedly moral at its core okay what makes promises non optional and binding is that we want it to be so as a way of achieving our purposes it's desirable to attain our ends contractual ends by the route of trust and promising even if we could get there just as well without them close quote sorry type on that slide there so really for freed this is all about a way of seeing the world we want our world to rely and to draw from institutions like promise now what does promise itself rest on well free kind of maps out this some I guess a scale then he said in terms of morality it all starts with respect you have respect for other humans and that then develops into a kind of trust and you won't trust you want to promote trust just generally as as an objective in terms of trust then comes language between the parties and then once you have language then you can ultimately get to the stage of the parties making promises to each other that's his I guess spectrum you would say and what he says is that morality is amplified at each step along this way so you have a modicum of respect for someone you've then trust them your moral obligations are starting to amplify your you converse with them you have a language exchange with them that's another step along the way and and I will probably say you know I don't know that you can separate trust and language because language is what build truck builds trust and trusting increases communications so that's what the business literature would tell you but then at the end obviously at the big amplified part of the spectrum is our big PE promises the the stuff that carries most moral weight okay so it's really all about the promises once you say I do you do it and you will do it not only you will do it and you should do it but you ought to do it because it's the right thing to do all right so let's have a look at the criticism of this theory firstly and probably fairly obviously some critics have said that the theory is tantamount to enforcing virtue if promise is a good thing and it's a morally right thing to honor then why shouldn't the law enforce all promises why is it only that contract law enforcement promises where consideration has moved between the parties and here I guess we just hark back to the beginning of the video where we were talking about the explanatory power of theory and this is where you know critics are throwing cricket balls at this theory and they're saying yeah can we knock it down with this one it's a fairly sizable one you know if you are going to say that enforceability should flow from the fact of promise then why is it that we only selectively enforce solemn promises where consideration is present and free doesn't really tackle it head-on in terms of the way that it impacts on his theory instead he mounts his own attack on what he considers the very incoherent doctrine of consideration so that's probably a fairly large hole in the promise theory the other thing is and this is where I say the bottom line it has similar problems to the classical theory and and you need most party based theory what Barnett would call party based theory so the will theory obviously is based on looking at what the parties wanted to do the promise theory is looking at what the party promised both of those kinds of theories are all well and good but what happens when it's not apparent from what you're kind of given like and white on the paper what the parties willed to do or what parties promised between each other okay bit of a problem there particularly where you have these kinds of theory drawing on the liberal individualism the kind of notion that you shouldn't have the state intervening so then what do you do where there's gaps what do you do where the parties haven't promised in the case of charles freed because we do have courts stepping in that don't leave the parties without a remedy if terms are unclear then you may we'll get the court implying some terms if unexpected situations arise then you have the court developing doctrines like frustration where the contract has ended because it's become something radically different to what the parties intended to do the issue is that the more of this kind of problem that crops up with a theory the less explanatory power it has this lesson before so the more roofer gap-filling there is in contract law the less convincing this theory use so that's just a little at promiscuity I dunno it's one of my colleagues are fairly smoothly defensive of this particular theory so again it's it certainly is something that leaves plenty of room for healthy debate and discussion which I hope will be coming up in our zoo session this week so that's the promise Theory moving right along to our next theory we have consent theory and this theory the dominant theme really here is about legal into our hands okay there's a system and that system deals with bundles of Rights how you get rights to stuff how you a lien ate those rights from yourself you know transfer those rights to other people how you deal with them the consent Theory basically conceptualizes contract law as being a system to facilitate the transfer of rights now that transfer of rights is dependent on and hinges on one main thing and that is the consent of the right owner that's the rationale you need to have consent before rights can be transferred okay what's the background to this one rose to prominence even the 1980s again as I seem very fertile time for theory building in contract law major proponent here is Randy Barnett my name was particularly to satisfy my with party based theories as I said before like real theory promised theory but he made the same kinds of criticism that I just flagged for you in terms of the promise theory they can't explain or rationalize situations where you still have enforceable contractual obligations but they occur in what could be the absence of some indication of what the parties intended their will or what they promised he said that's a fairly severe limitation on their explanatory power so he went searching for something else and that's something else that he came up with was consent theory it's not the only proponent but he's probably the most well known proponent the hallmarks individuals have rights or entitlements as we would call them in legal speak those rights are the root of contractual obligation now the system of entitlements specifies the rights who owns the rights and the bounds of your freedom to deal with those rights property law children how you get rights tort law tells you how you can use rights what the limits are contract law specifies how you can transfer your rights will alienate the the rights that you have max fairly common sense when you think about it but there's a fundamental point here and I kind of agree with funny in one way and that is he says really the problem with things like will theory or promise theory is that they they kind of talk about what the individuals want to do with what they've got but really what we need to do is take a breath take step back and go what's sitting underneath what actually causes a person to be able to say this is what I want to do with what I've got in the world theory or this is what I promised you that I will do with what I've got I love myself to introduce myself there is something underneath all that and what is underneath all that is the system of Rights okay you can't will to do something I'll promise to do something unless you have something to deal with and so he says have a look at the rights that are sitting underpinning all of this more fundamental than will I'll promise you have to have a right to do something before you can go with it as you will promise okay now the main thing for Barnett in terms of dealing with your entitlements is that you must not just consent subjectively but you must provide to all outward occasion to all outward appearance that you have actually consented that is you've gone ahead and you've done something that manifests your consent that's the big mooch pin okay see it see it as long as an obligation contractual obligation can be traced back to your consent to do whatever it is that you're now being alleged to be obliged to do then you in fact will be obliged to do it so you need to have an objective view here as to whether or not consent has occurred so unlike will or promise there's there's not really that issue of the disconnect between what the party subjectively will thought subjectively thought they were promising and then the difficulty of reconciling the theory with the way that the courts go about objectively looking at most things here what money is saying is look at things objectively the only real and close to empirical evidence that we have of consent is outward manifestation of consent and that's the real thing you've got to look for they're the major hallmarks of consent theory okay so what are some of the criticisms that can be made of this theory ironically there is a sort similar criticism that can be made of the consent theory that is a little like the criticism that bonnet made of the will Syrian promise theory and that is what happens where you can't identify consent to a particular term or terms what happens if there's gaps in the contract and we know that courts are stepping to imply terms or look at that a little later this term so what's the story there does the theory fall down doesn't lose its explanatory power so we weren't talking about the beginning of the video on it kind of comes up with a bit of a nifty two-step and he says well really we have situations like that the implied to the doctrine of implication of terms relies on a set of default rules and those default rules being in existence the pace have indirectly consented to those so it kind of gets around that criticism which is you know good for him however I guess what what that doesn't address is the issue of standard form terms and conditions that the parties just don't read and therefore they don't consent to except in a really you know broad sense in terms of getting what they want at the end of the day out of the contract but it just doesn't shirk this and says well you know in that particular case the party is consenting they're consenting to acceptance of the risk that comes along with not reading the terms and conditions he says really the only exception there will be where the T's and C's are radically unexpected so they're really something quite different from what would be the ordinary case which the party can't really deemed to have accepted as a you know run a mental risk when you're entering contracts and that type for example so again a few holes in that theory and like I said most my series will have holes and you've got to bear in mind these aren't theories these aren't scientific prescriptions that will hold true in every single case like you know the laws of the universe the laws of gravity these are kind of post hoc constructions to try and understand better what it is that the law is doing or in especially in the case of promise theory shouldn't be doing and how they shape our perspective on contract law and what it's all about so that is considering and that's where we'll leave it this particular video part two we'll move on to part three in the next video so once again hold that thought and come back and see me for part three thanks guys