Freedom,Compulsion,Compliance and Mystery: Reflections on the Duty Not to Enforce a Promise

Abstract

The difference between the law of consensual relationships and the morality of those relationships is one of compulsion and freedom. In the former, we find ourselves being compelled by, or compliant with, a rule some distance removed from the basic norm; in the latter we find ourselves in touch, constantly and sometimes in the face of more visceral obligatory rules, with a far deeper and more fundamental (transcendental) sense of fairness. In commercial relationships, this difference is apparent when we examine the law’s inability to address the promisee’s moral duty not to enforce an otherwise legally binding contract.