The Research Of The Conflict Between The Promise Theory And The Non-promise Theory In The Anglo-American Contract Law

In the Common Law System, the conflict between the Promise Theory and The Non-promise Theory exists in the whole of the history of Contract Law. Compare with the developing of the laissez-faire, respect the free will of people has become the social requirement. Meanwhile, the developing of Nature Science influenced Social Science deeply, these influence leads to the people believe that all the things in the world are knowable, and the decision make by people is thoughtful. In this background, the Promise Theory came to our horizon, opened a new window for the Contract Theory, and bring the pure Contract theory to us. After several decades, the society changes much more, people aware that we believed ourselves have known all the theory in this world after Industrial Revolution is some what naive. The developing of Psychology and Sociology illustrates that the free will and the people's decision are not reliable. The over complex contact in our society makes the risk of people's choice has become out of control. All of these bred the Non-promise Theory. The Non-promise Theory assert that the Contract Law should be absorbed by the Tort Law, and should be reconstructed. In the Common Law system, the popular of Non-promise Theory likes regression from the Contract to the Tort Law.The conflict between the Promise Theory and The Non-promise Theory is not only the problem of the theory, but also the problem in real world. It influences the effect of the contract, the way of explain of the contract and the damages. Which one is the dominated would influence the judgments.Almost all the problem is coming from this conflict. In this essay, I would like to discus some important point.1. The Promise Theory is changed. It experiences a progress of developing. Based on the difference of the core, there are two phases in the progress of the Promise Theory: One is the Classical Contract Promise Theory; the other is the New Promise Theory. Both of them believe the promise is the base of the contract. However, they also have great difference. The Classical Contract Promise Theory asserts that the consideration is very important. On the other hand, the New Promise Theory claims that the consideration should be abolished.2. The relationship between the Classical Contract Promise Theory, the Non-promise Theory and the New Promise Theory is quite complex. In many areas, the Non-promise Theory and the New Promise Theory is not completely distinguished. The reason is that the critical subject of the Non-promise Theory is not the New Promise Theory but the Classical Contract Theory.3. This essay pays much attention on the history of the Contract Law. That is because the Contract Law came from the Tort Law. Review the history will help us to understand why the Tort Law has the intendancy to absorb the Contract Law.4. This essay focuses on the Consideration System. That is because the Consideration Theory is the core of the conflict between the Promise Theory and Non-promise Theory.5. The conflict between the Reliance Interest and the Expectation Interest is the extension of the conflict between the Promise Theory and the Non-promise Theory. The attitude of the American Court toward the Reliance Interest Theory is somewhat reflect the attitude toward the Non-promise Theory.6. The Foreseeable Standard is the basic of the Reliance Interest Theory and the Non-promise Theory. It is an object standard, which does not care about the will of both party of the contract at the time of they conclude the contract. On the contrary, it based on the idea of how a reasonable people ought to foresee at the time of they conclude the contract. This way of thinking male the Foreseeable Standard is much more like a Tort Law Standard, rather than a Contract Law Theory. 7. The New Promise Theory could not give the Classical Contract Theory a new life. On the contrary, it accelerated the death of the Classical Contract Theory. It retreat from many area of the Contract Law and leave this area to the Non-promise Theory.8. Although the Non-promise Theory is more popular in the modern time, it still has its own disadvantage. The Non-promise tries to using the social standard to weigh the contract rather than using the will of the contractor. People living in such circumstance would leave the content of contract to the court and would not careful when they entrance to a contract. That tendency may waste the legal resources.First, I would like to show the subject in this essay, the Promise Theory, the Non-promise, the Classical Contract Theory and the New Promise. Second, I will illustrate the history of them. Third, I will discus the main point of the conflict: the consideration. Fourth, I will show the conflict between the Reliance Interest and the Expectation Interest which is the extension of the conflict between the Promise Theory and The Non-promise Theory. Finally, I will give some comments about the conflict.