The Continuum of Contractual Commitment

Authors

• David Snyder, American University Washington College of LawFollow

Abstract

Contracts frequently call for one or more differentiated levels of contractual commitment. Although contractual liability in the common law is said to be strict liability, and a claim that a good attempt was made is said to be no defense, often a party promises only to try. Contract theory in the United States struggles with departures from the paradigm of strict liability, and it has failed to fully consider the continuum of contractual commitment. To encompass the range of assent-based commitment and its consequent liability, U.S. contract theory needs to distinguish more clearly between (1) promises to try, which do not carry strict liability and instead lead to a kind of assentbased tort liability; (2) ordinary contractual promises, which do carry strict liability but are still subject to a variety of defenses; and (3) contracts that are akin to insurance, under which even force majeure may not be a defense, as under a “hell or high water” covenant. Under the U.S. common law, promises to try cause extensive problems. They are associated with “efforts” clauses (like “best efforts” or “reasonable commercial efforts”), and the case law is at odds with itself as well as with the expressed intent of the parties. A majority of U.S. courts—most prominently Delaware and New York—do not distinguish between different levels of effort. On the other hand, English courts and a minority of U.S. courts do distinguish between, say, “best efforts” and “reasonable efforts” (or “best endeavours” or “reasonable endeavours” in England). This disarray suggests that courts may not feel confident in their competence to distinguish levels of effort. This limit on institutional competence thereby limits the contractual capacity of parties who may wish to make a greater or lesser commitment. The civil law, by contrast, offers both a precise taxonomy of differing levels of contractual commitment and a robust doctrine supporting the distinctions. This paper argues that contractual commitment, based on parties’ expressed intent, is highly differentiated; that U.S. common law courts and contract theory fail to do justice to these legal commitments and thus limit parties’ capacity and freedom to contract; and that civil law theory and courts show possibilities that the U.S. common law should more fully realize.

External Links

https://digitalcommons.pepperdine.edu/plr/vol53/iss4/1/

Repository Citation

David Snyder, The Continuum of Contractual Commitment, 53 Pepp. L. Rev. 525 (2026).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/2360