Thomas Davitt On Contractual Obligation

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The basis on contractual obligation is a promise, a promise from both parties to perform a duty, or duties in reliance on that promise. This paper will take the stance that Thomas Davitt takes, stating that though mutual assent and consideration are important to a contract, those factors are not the essence of a contract. There is a moral obligation to fulfill a contract, one that is much more than simply words written on paper. The second restatement of contracts defines a contract as: “a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” Restatement (Second) of Contracts § 1 (1979). The restatement goes on to define what a promise is. “A …show more content…

Davitt discusses the difference between “consent” and “assent”. Davitt states that the former implies a positive action and involves submission, while the later involves more passivity or submission, which does not include consent. Id. at 273. Davitt would rather state that knowledge and consent are more appropriate, because these two factors can be applied to both natural and legal promissory agreements. Id. at 274. In Davitt’s view, consideration is not the basis for contractual obligation. Davitt uses consideration to discuss ways in which to distinguish between legally enforceable promises are those that are not. According to Davitt, a consideration is the price bargained and paid for a promise. Id. at 277. Consideration, as defined in the restatement, is similar, stating that in order “[t]o constitute consideration, a performance or a return promise must be bargained for.” Restatement (Second) of Contracts § 71. Though Davitt uses a similar definition to that of the restatement, he believes that consideration is not even essential for a contact. Davitt states that bargaining, or a quid pro quo, too often fosters injustice and frustration of honest claims. The Elements of Law, at 279. Davitt also states that men have been making agreements for a long time that do not involve a quid pro quo, or anything else like the later, yet there is still a trust between the two parties. Id. at 282. Davitt argues that

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