Agreements A Philosophical and Legal Study

Author: Oliver Black
Publisher: Cambridge University Press
ISBN: 9780521885607
Published In: April 2012
Format: Hardback , 460 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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Combining rigorous philosophical analysis with a deep knowledge of law, this study of agreements illuminates legal doctrine by philosophical theory and vice versa. Against the prevailing philosophical view of agreements, the book argues that they are to be understood in terms not of promises but of offer and acceptance. Topics covered include the obligations associated with agreements; the practical reasoning that leads parties to make and perform agreements; the relation between agreement and intention; and the reasons the State has to intervene in agreements. There are also separate chapters devoted to doctrines of agreement in the laws of contract, competition and conspiracy.

• The only book to provide an analysis of agreements in general, rather than a limited treatment of agreements in a particular area of law

• Deals with a crucially important subject, which includes a wide range of theoretical discipline

• A cross-disciplinary study, each chapter is both interesting to specialists and comprehensible to beginners

Acknowledgements	xi
Introduction	1
Part I Philosophy
1 Promises	25
1.1 The nature of promises	26
1.2 Promise-based analyses	33
1.21 Unconditional promises	33
1.22 Conditional promises	34
1.23 Mixed promises	40
1.231 Criteria of adequacy	44
1.2311 Symmetry	45
1.2312 Obligation	45
1.2313 Simultaneity	48
1.2314 Interdependence	49
1.232 Analysis (10)	52
1.3 A trilemma	52
1.4 Revision of the mixed-promise analyses	52
1.5 Revision of the principles of obligation	54
1.6 Conditional promises again	59
1.7 Conclusion	62
2 Offer and acceptance	63
2.1 Elements of the offer–acceptance model	63
2.2 Constitutive rules	67
2.3 Obligation	70
2.4 Functions	72
2.5 Criteria of adequacy	75
2.6 Objections and replies	75
2.61 Varieties of agreement	76
2.611 Intervention by a third party	76
2.612 Multipartite agreements	77
2.613 Fluidity and voting	79
2.62 Offer, acceptance and promise	80
2.63 Conditionality	85
2.64 Breach of obligation	88
2.65 A practice of agreement	89
2.66 Circularity	91
3 Obligation	95
3.1 Questions about obligation	95
3.2 The ground of an obligation	100
3.3 Grounds of performance obligations	105
3.4 Generality versus morality	114
3.5 Grounds of moral performance obligations	118
3.51 Reliance	118
3.52 Other grounds	125
3.6 The fact of agreement as ground of a performance obligation	128
4 Practical reason	136
4.1 Making the agreement	136
4.11 Desired performance by the other party	137
4.12 Desired performance by both parties	143
4.2 Performing the agreement	146
4.21 Deontological reasoning	146
4.22 Instrumental reasoning	149
4.3 Other types of reasoning	153
4.4 Appendix: the possibility of agreements	154
5 Intention and other topics	158
5.1 Intention	158
5.11 First case: (116) – subjective concepts, prior intention	160
5.12 Second case: (117) – subjective concepts, intention in action	163
5.13 Third case: (117) – objective concepts, intention in action	164
5.14 Fourth case: (118) – subjective concepts, intention in action	165
5.15 Fifth case: (119) – subjective concepts, intention in action	166
5.16 Sixth case: (119) – objective concepts, intention in action	167
5.17 Converse conditionals	168
5.2 Identity	168
5.3 Logical properties	170
5.31 Conjunction	170
5.32 Closure	175
5.4 Agreement to agree	178
5.5 Agreement with oneself	178
5.6 Appendix: conditional intention	183
6 Intervention by the state	186
6.1 The state and its reasons	186
6.2 Reasons for enforcement	189
6.21 Consequential reasons	190
6.211 Goods resulting from performance	192
6.2111 Benefits to the parties and others	194
6.2112 Expression and obligation	198
6.212 Goods resulting from formation	201
6.213 Other goods	203
6.22 Deontological reasons	205
6.3 Reasons for prohibition or promotion	207
6.4 Appendix: reason and function	209
Part II Law
7 Contract	217
7.1 Elements of contract law	217
7.11 Offer and acceptance	218
7.12 Consent and the will	219
7.13 Rules of offer and acceptance	222
7.14 Varieties of contract	224
7.15 Boundaries	224
7.2 Agreement not sufficient for contract	225
7.21 Agreements that are not contracts	227
7.22 The divergence explained	228
7.3 Agreement not necessary for contract	229
7.31 Posting	229
7.32 Death	231
7.33 Simultaneous exchange	232
7.34 Imposed contracts	233
7.35 Negotiations	234
7.36 Unilateral contracts	234
7.37 Objectivity	236
7.38 The divergence explained	239
7.4 Contractual agreement without offer and acceptance	240
7.5 Contract as promise	242
7.6 Independent promises	243
7.61 Versions of the distinction	244
7.611 Dependence	245
7.612 Independence	247
7.62 Logical properties of dependence and independence	247
7.63 The case for internal conditionality	248
7.631 Against the reason-based analysis	248
7.632 Justification for the rule of rescission	250
7.633 Against externally conditional analyses	251
7.64 Independence, dependence and agreement	254
8 Competition	257
8.1 Concurrence of wills	260
8.11 Intention and concurrence of wills	265
8.12 Conditionality	267
8.121 First case: (186) – subjective concepts, prior intention	268
8.122 Second case: (191) – subjective concepts, prior intention	271
8.13 Defences and further objections	272
8.2 Common intention	278
8.3 Concerted practices	280
8.31 The joint action model	282
8.32 Communication	284
8.33 Reduction of uncertainty	290
8.4 Complex cartels	294
8.5 Unilateral action	298
8.51 Vertical relationships	300
8.52 Oligopolies	308
8.521 Tacit agreement	309
8.522 Reducing the problem	316
8.5221 Agreements	318
8.5222 Concerted practices	318
9 Conspiracy	323
9.1 Statutory conspiracy	323
9.2 Actus reus: the agreement	329
9.21 Agreement and action	333
9.22 Conspiracy and contract	339
9.23 Duration	342
9.24 Course of conduct	344
9.25 Material object	346
9.26 Conditionality	348
9.27 Complex conspiracies	353
9.28 Collaboration	360
9.3 Mens rea	362
9.4 Parties	366
References	372
List of numbered propositions	415
Index	431