“Law &” Gratuitous Promises

The refusal to enforce gratuitous promises absent consideration is one of the foundations of contract law. The rationales with which courts and scholars supported this traditionalist view—the evidentiary, caution-ary, and channeling functions of consideration—have been framed and analyzed in terms of law and economics. However, even when framed in economic terms, these traditionalist arguments are less than persuasive because they assume that certain factors that limit rational human deci-sion making apply only to gratuitous promises and not bargained-for commercial promises.This article attempts to analyze the refusal to enforce gratuitous promises from a behavioral law and economics perspective. Behavioral law and economics tends to show that the same limits on rational human decision making that apply to gratuitous promises also apply to bargained-for commercial exchanges. The article argues that although behavioral law and economics analysis of the traditional arguments does not support dif-ferential treatment of gratuitous and bargained-for promises, it fails to provide a rationale for overturning the common law’s refusal to enforce gratuitous promises.

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