Indiana Law Review


Indiana Law Review
Volume 41 2008 Number 1

ARTICLES

Recent Defenses of Consideration:
commodification and collaboration

Mark B. Wessman*

Table of Contents

Introduction 10

I. Professor Eisenberg on Commodification 13

A. Professor Eisenberg 's Argument 13
B. Criticism 19

1. The Complicated Concept of Commodification 19
2. Possible Implications of Commodification 22

a. Market trading 22

b. Monetization 23

c. Fungibility 26

d. The transformative power of commodification: Epistemic
uncertainty 29

e. The transformative power of commodification: Poisoning
the well 30

3. The Range of Excuses for Not Performing Donative
Promises 33

II. Professor Markovits on Collaboration 36

A. Professor Markovits
1

s Argument 36
1

.

The Scope of the Argument 36
2. Promissory Obligation 37

3. Collaboration and Contractual Obligation 39

4. Consideration 41

B. Criticism 42

1

.

Refining the Scope of the Defense 42

2. The Problem of the Passive Promisee 43
3. A Potential Reconstruction: Joint Intentional Activity 45
4. A Closer Look at Collaboration and Benevolence: The Moral

Value of Donative Promises 47

* Professor, Tulane Law School; Visiting Professor, University of South Carolina School
of Law (Spring 2007). I thank Lloyd Bonfield, Nathan Crystal, James Gordley, Julie Jackson, Phil
Lacy, and Brooke Overby for helpful comments on an earlier draft of this Article. I am also grateful
to the participants who attended a colloquium at the University of South Carolina School of Law
in October 2006. Finally, I thank Dean Larry Ponoroff ofTulane Law School for research support.



10 INDIANA LAW REVIEW [Vol. 41:9

a. The value of benevolence 47
b. The argument based on indifference to motive 47
c. Benevolence, cooperation, and comparing distinct moral

ideals in deontological theory 49

Conclusion 52

Introduction

Occasionally, the disputes of contract theory begin to appear very old, and

each succeeding wave of scholarship seems to be little more than dressing up old
ideas in new disguises and rehashing old disputes in new jargon. One cure for
this academic variety of Weltschmerz is to encounter and address truly novel

arguments about thoroughly familiar issues. In this Article, I wish to respond to

two such novel efforts, the first by one of our most eminent and prolific contracts

scholars, Melvin Aron Eisenberg,
1

and the second by a relatively more recent

arrival, Daniel Markovits.
2

The subject of the innovations introduced by Professors Eisenberg and
Markovits is the so-called "requirement" of consideration, although in each case

the treatment of the doctrine of consideration is part of a larger project. My own
interest in the subject goes back to a study of over 300 consideration cases I

published as a pair of articles in the 1990s.
3

I argued that, while the majority of

applications of the doctrine of consideration are redundant, the doctrine

nevertheless still has more than rhetorical bite, i.e., it still is outcome-
determinative in a range of cases.

4
I further argued that contract law, on the

whole, would be better off without it. 5 On the positive side, I argued that the
reasons commonly advanced in favor of enforcing bargain promises—the
facilitation of exchange, the protection of expectations or reliance, or respect for

autonomy—could also be mustered in support of the enforcement of promises
traditionally classified as gratuitous.

6 On the negative side, I argued that the
reasons traditionally advanced for the claim that gratuitous promises are

somehow suspicious and unworthy of enforcement were all inadequate.7 In so

1

.

Melvin Aron Eisenberg, The World of Contract and the World of Gift, 85 Cal. L. Rev.

821 (1997) [hereinafter Eisenberg, Contract and Gift].

2. Daniel Markovits, Contract and Collaboration, 113 YALE L.J. 1417 (2004).

3. Mark B. Wessman, Should We Fire the Gatekeeper? An Examination ofthe Doctrine of
Consideration, 48 U. MIAMI L. REV. 45 (1993) [hereinafter Wessman, Gatekeeper /]; Mark B.

Wessman, Retraining the Gatekeeper: Further Reflections on the Doctrine of Consideration, 29

LOY. L.A. L. Rev. 713 (1996) [hereinafter Wessman, Gatekeeper II]

.

4. Wessman, Gatekeeper I, supra note 3, at 52-1 14; Wessman, Gatekeeper II, supra note

3, at 717-817.

5. Wessman, Gatekeeper I, supra note 3, at 1 16-17; Wessman, Gatekeeper II, supra note

3, at 816-45.

6. Wessman, Gatekeeper II, supra note 3, at 817-25.

7. Id. at 826-44. The reasons for withholding enforcement that I examined, and ultimately

rejected, included (a) the claim that "gratuitous promises are too trivial to merit enforcement"; (b)



2008] COMMODIFICATION AND COLLABORATION 1

1

arguing, I endeavored to examine all the traditional arguments in favor of and

against the requirement of consideration, most of which had been made by
multiple authors over a period of decades.

8
Each contribution to the discussion

of the issues in question moved the argument to a new stage, but the issues
themselves have been contested among scholars for a long time. Accordingly,
though I continue to adhere to the views expressed in the earlier articles, I do not

propose to revisit them here. Instead, I wish to focus on two quite innovative,
albeit partial, defenses of the requirement of consideration.

As it turns out, the set of arguments that can be mustered on either side of
contentious issues is never really closed. In an article published in 1997,

Professor Eisenberg introduced an argument with no prior analogue of which I

am aware. Specifically, he argued that at least one class of gratuitous
promises—simple, affective donative promises—should remain unenforceable,
as the doctrine of consideration dictates.

9 One reason is that a regime of
enforcement would "commodify" donative promises and thereby impoverish
what he calls the "world of gift."

10
Another is that a regime of enforceability

could not, in principle, accommodate the full range of moral excuses for breaking
such promises.

11

More recently, Professor Markovits has suggested that the traditional
requirement of consideration finds some support in a philosophical concept he
calls "collaboration."

12
That concept is the most important element in a Kantian

reconstruction and justification of the making and keeping of contracts,
13

a

reconstruction that draws on more general Kantian foundations to account for
both the moral obligation to keep promises and the legal obligations surrounding

them.
14 The notion of "collaboration" upon which he elaborates is a technical

one, and it has no antecedent of which I am aware in previous debates on the
doctrine of consideration.

Ultimately, in my view, neither Professor Eisenberg' s argument on the basis
of "commodification" nor Professor Markovits' s argument on the basis of

"collaboration" provides a satisfactory defense of the traditional requirement of

consideration. My response to their arguments will proceed as follows. In Part
I, I examine and respond to Professor Eisenberg' s views. After an initial and

the claim that gratuitous promises are too likely to be "impulsive or imprudent"; (c) the claim that

gratuitous promises are "too easily fabricated"; (d) the claim that enforcement of gratuitous

promises would result in excessive "inadvertent contracting"; (e) the claim that gratuitous promises

are subject to a "range of excuses" not easily captured by our legal system; and (f) the claim that

enforcement of gratuitous promises would cause "unpredictable strains" and undesirable

consequences elsewhere in our system of law. Id.

8. Id. at 817-44.

9. Eisenberg, Contract and Gift, supra note 1, passim.

10. Id. at 823, 847-49.

11. Id. at 823, 828-29, 831 n.32, 849-50.

12. Markovits, supra note 2, at 1474-91.

13. Id. at 1446-74.

14. Mat 1422-46.



12 INDIANA LAW REVIEW [Vol. 41:9

more detailed summary ofhis argument, 15 1 proceed to a more articulated analysis
of the concept of commodification on which it depends.

16
I examine several

possible meanings of the term "commodification" and several corresponding

versions of the claim that enforcement of donative promises would commodify
them.

17
I argue that none of them provides the defense of the requirement of

consideration to which Professor Eisenberg aspires.
18

I then examine, and

ultimately reject, two possible interpretations of his claim that a system which

enforced donative promises could not successfully accommodate the range of
moral excuses to which such promises are subject.

19

In Part n, I turn to Professor Markovits's argument based on the concept of

collaboration. It is necessary to begin with a rather extended summary of his
argument,

20
as it is both innovative and complex. After articulating the moral

ideals of respectful community and collaboration that Professor Markovits uses
as the basis of promise and contract, respectively,

21
1 summarize his argument

that the collaborative ideal supports the requirement of consideration in the law

of contract.
22 My criticism of that argument proceeds in the following stages.

Initially, I observe that, even if one accepts the value of the collaborative ideal,

it provides, at best, an argument in favor of granting enforcement to bargain

promises, but not an argument for withholding it from donative promises.
23 To

the extent Professor Markovits presents a distinct argument for withholding legal

sanctions from donative promises, it appears to rely on a claim that the presence

of a "passive promisee" destroys the prospect for collaboration.
24

I then dissect

his notion of a passive promisee and argue that it is too weak to support that
claim

25
and can only be strengthened by maneuvers that ultimately make his

argument question-begging.
26

Finally, I argue that, from materials found in

Professor Markovits's own theory, one can construct an argument that moral
ideals other than collaboration, but at least as valuable, support the enforcement

of donative promises at least as well as the notion of collaboration supports the

enforcement of bargain promises.
27

15. See infra Part LA.

16. See infra Part I.B.I.

17. See infra Parts I.B.2.a-e.

18. See infra Parts I.B.2.a-e.

19. See infra Part I.B.3.

20. See m/raPartn.A.

21. See infra Parts II.A.2-3

.

22. See infra Part II.A.4.

23. See infra Part ll.B. I.

24. See infra Part II.B.2.

25. See infra Part II.B.2.

26. See infra Part II.B.3.

27. See infra Part II.B.4.



2008] COMMODIFICATION AND COLLABORATION 13

I. Professor Eisenberg on Commodification

A. Professor Eisenberg 's Argument

Initially, Professor Eisenberg distinguishes very carefully between the

aspects of the classical doctrine of consideration
28

that he wishes to defend and

those he does not.
29

In particular, he draws a definitional line between gratuitous

promises and donative promises, with the latter being a subset of the former.
30

He uses the term "gratuitous promise" to refer to any "nonreciprocal or
apparently nonreciprocal" promise, and the term would thus seem to encompass
any promise that did not meet the classical requirement of bargained exchange.

31

Gratuitous promises thus encompass some promises, including uncompensated
promises to hold an offer open for a fixed period of time or one-sided contractual

modifications, that lie in the "hard-headed world of contract," in the sense that

they are ancillary or related to bargains.
32

These sorts of promises violate the

classical doctrine of consideration and were traditionally unenforceable, but

Professor Eisenberg has consistently recognized the propriety of enforcing

them.
33

A "donative promise," on the other hand, is a promise to make a gift. 34 A
"gift," in turn, is defined as "a voluntary transfer that is made, or at least purports

to be made, for affective reasons like love, affection, friendship, comradeship, or

gratitude, or to satisfy moral duties or aspirations like benevolence or generosity,

and which is not expressly conditioned on a reciprocal exchange."
35 The

paradigm cases ofdonative promises would thus seem to fall into two categories:

( 1 ) gift promises between family members, friends, or other close associates; and

28. Generally speaking, the requirement of consideration may be formulated as the rule that

a promise is not enforceable unless it is a component of a bargain. A transaction is a bargain, in
turn, if and only if it is an exchange of promises or performances and each side of the exchange is

the inducement for the other. Wessman, Gatekeeper I, supra note 3, at 49; Wessman, Gatekeeper

II, supra note 3, at 804. However, it is generally recognized that the so called "doctrine" of

consideration is actually not one rule, but a set of rules. The set includes the general requirement

of bargained exchange, as well its purported corollaries, the pre-existing duty rule, the rule that

illusory promises cannot be consideration, the requirement of mutuality of obligation, the rules that

past consideration and moral consideration are insufficient, the full revocability of offers other than

paid options, and a few special rules relating to covenants not to compete and employment not

terminable at will. Wessman, Gatekeeper I, supra note 3, at 49-50; Wessman, Gatekeeper II, supra

note 3, at 713-14.

29. Eisenberg, Contract and Gift, supra note 1, at 824-25.

30. Id.

31. Id.

32. Id.

33. Id. at 832-23; Melvin Aron Eisenberg, The Principles ofConsideration, 67 CORNELLL.

Rev. 640, 653-56 (1982) [hereinafter Eisenberg, Principles].

34. Eisenberg, Contract and Gift, supra note 1, at 825.

35. Id. at 823.



14 INDIANA LAW REVIEW [Vol. 41:9

(2) charitable (and perhaps political) pledges.
36

Collectively, gift promises and

actual gifts constitute the "world of gift," which Professor Eisenberg

distinguishes from the "world of contract."
37 The latter term is confined to

commercial agreements, and so includes most conventional bargains as well as

those nonreciprocal business promises ancillary to bargains that do not qualify

as gift promises.
38

There are two further limitations on the territory Professor Eisenberg wishes

to defend. First, he recognizes that a donative promise (in his sense) may be
enforceable on a theory of promissory estoppel because of the promisee's

justifiable reliance.
39 He therefore coins the term "simple donative promise" to

refer to any donative promise, the enforcement of which cannot be justified by

appeal to reliance or some other previously recognized substitute for
consideration,

40
and confines his thesis to the claim that simple donative promises

are, and should be, unenforceable.
41

Second, though it is not as obvious at first glance, he appears to exclude

charitable subscriptions from the scope of his thesis. He seems to approve of the
rule recommended in section 90(2) of the Restatement (Second) of Contracts

42

that charitable subscriptions be enforced without proof of consideration or

reliance, although he is quite aware of that rule's mixed reception in the courts.
43

A charitable subscription could thus qualify as a simple donative promise, and
yet its enforcement might be justified on public policy grounds. Thus, the most

precise formulation of Professor Eisenberg' s view might be to say that simple,

affective donative promises are, and should be, unenforceable. This, I think, is

the full specification of what Professor Eisenberg calls the "donative promise

principle."

He is, of course, quite aware that the claim he is making is not a terribly
broad one—certainly nothing like the breadth of the classical requirement of
consideration.

44
However, he nonetheless regards it—rightly, in my view—as

extremely significant.
45

Given the trend in modern contract law to enforce all

36. Id. at 823-24 n. 14.

37. Id. at 823-24.

38. Id. at 823-25.

39. Mat 822, 834, 851.
40. Mat 822.
41. Id. at 822-23 . At times, Professor Eisenberg uses the phrase "donative-promise principle"

to refer more narrowly to the descriptive claim that simple donative promises are not, in fact,

enforceable under our system of contract law. Id. at 822. However, he also clearly endorses the

normative claim that simple donative promises should not be enforced (i.e., that the descriptive

donative promise principle is justified), id. at 847-49, and I shall sometimes use the term to refer

collectively to both the descriptive and normative claim.

42

.

Restatement (Second) of Contracts : Promise Reasonably Inducing Action or

Forbearance § 90(2) (1981).

43. Eisenberg, Contract and Gift, supra note 1, at 852, 861.

44. Id. at 822-23.

45. Id.



2008] COMMODIFICATION AND COLLABORATION 1

5

commercial promises—even though some are technically gratuitous—the
donative promise principle is the new doctrinal fault line between contract
(properly understood) and promises that fall on the wrong side of the doctrine of
consideration.

46

Professor Eisenberg' s method for establishing the donative promise principle

is essentially a balancing process in which the reasons for and against enforcing

simple donative promises are weighed.
47 The range of relevant reasons is

subdivided into substantive reasons and process reasons.
48

While Professor

Eisenberg recognizes that there are some substantive reasons to enforce simple
donative promises, he regards those reasons as either weak or indeterminate and
heavily outweighed by serious process reasons not to enforce donative promises

and, even more importantly for purposes of this Article, decidedly stronger
substantive reasons not to do so.

49

Professor Eisenberg identifies two substantive reasons in favor of enforcing

simple donative promises.
50

First, like any other promise, a simple donative

promise creates an expectation in the promisee, and the promisee suffers a

disappointment of that expectation if the promise is not kept.
51

However,

Professor Eisenberg argues, that expectation is likely to be weak and the
disappointment correspondingly slight.

52
Second, "donative promises as a class

46. Id.

47. Mat 825.
48. Mat 828.
49. Id. at 823.

50. Id. at 828.

51. Id.

52. Id.; see also Melvin Aron Eisenberg, Donative Promises, 47 U. Cffl. L. Rev. 1, 3 (1979)

[hereinafter Eisenberg, Donative Promises]. It is possible to question the accuracy of this claim,

which is essentially an empirical premise. Recall that the subject under discussion is the simple,

affective donative promise, which, by definition, is made between family members, friends, or

others in a similarly close relationship. It seems to me that, at least in some instances, the

disappointment suffered by a donative promisee is likely to be far more intense than that suffered

by a bargain promisee. If the new computer I order from an online vendor fails to perform as

warranted in our bargain, my disappointment will amount to annoyance, perhaps even serious

annoyance. However, if my father had promised to finance my college education and then reneged,

the intensity ofdisappointment would have risen to the level of heartbreak, precisely because of the

affective relationship. In some instances, at least, bargain promisees may feel merely disappointed,

while donative promisees feel betrayed.

Nevertheless, I think Professor Eisenberg is right that the promisee's disappointment is

probably not a sufficient reason to enforce donative promises, although I also think disappointment

of expectations in that sense is not the reason we enforce bargain promises, which Professor

Eisenberg seems to regard as generating stronger expectations. The problem with discussions of

"compensating disappointed expectations" is that there is a danger of equivocating between two

senses of the word "expectation." I assume most promisees (of whatever variety) subjectively

anticipate that their promisors will perform, and it is natural to characterize that subjective

anticipation as "expectation." If the promisor breaks his promise, the disappointment of that



1

6

INDIANA LAW REVIEW [Vol. 41:9

probably tend to move assets from persons with more wealth to persons with
less."

53
Professor Eisenberg thus rejects the view that donative promises do not

or cannot enhance utility.
54

However, he emphasizes that the overall economic

effects ofmaking simple donative promises enforceable are indeterminate.55 The
prospect of enforcement might result in more performance of donative promises,
with a resulting increase in the number of completed gifts and gravitation of the
subjects of gifts to users who value them more highly.56 On the other hand,
prospective gift promisors' concerns about possible regret contingencies might

result in less gift promising, fewer completed gifts, and a consequent reduction

in efficiency.
57

subjective anticipation is a form of emotional or psychic harm. However, that is not the sense of

"expectation" relevant to contract law. If the reason we enforced promises was to compensate for

disappointment qua psychic injury, our remedial scheme would be strangely incoherent. The

general rule is that, absent exceptional circumstances, we do not award damages for emotional

injury resulting from the breach of a contract. See, e.g., RESTATEMENT (Second) OF CONTRACTS:

Loss Due to EmotionalDisturbance § 353 (1981). It would be impossible to explain that rule

if the general reason for enforcing promises were a concern for psychic harm. I agree with

Professor Eisenberg that the reasons we enforce promises at all are relevant to our choice of

remedies and vice versa. See Eisenberg, Donative Promises, supra, at 1-2; Eisenberg, Principles,

supra note 33, at 640. Accordingly, the rather inflexible limitation on emotional distress damages

suggests to me that "subjective anticipation" has little to do with our grounds for enforcement of

promises. In the sense in which "expectation" is relevant to contracts, it refers to a hypothetical

state of affairs that would have been obtained had the breaching promisor performed instead of

breaching. Wfien we speak of "protecting expectations," we are generally referring to awards of

expectation damages that reproduce, insofar as money can do so, the economic equivalent of that

hypothetical state of affairs. While compensation for any emotional distress might theoretically be

a component of that expectancy, we decline to include it, presumably for reasons Professor

Eisenberg would classify as process reasons. There are, of course, many respects (e.g., attorneys'

fee limitations, the limit of foreseeability) in which we do not provide full compensation for the

expectancy in the second sense.

53. Eisenberg, Contract and Gift, supra note 1, at 828; see also Eisenberg, Donative

Promises, supra note 52, at 4.

54. Eisenberg, Contract and Gift, supra note 1 , at 829.

55. Id. at 828.

56. Id. ; see also Eisenberg, Donative Promises, supra note 52, at 4.

57. Eisenberg, Contract and Gift, supra note 1, at 828. Indeed, there are other relevant

economic factors as well. For example, as Professor Eisenberg observes, the donative promise

principle seems to be the last component of the doctrine of consideration that scholars are prepared

to defend. See id. at 828-3 1 . Yet the rules relating to consideration are alive in the courts and form

an extraordinarily complex doctrinal edifice. It is arguable that enforcing simple donative promises

would permit the abandonment of that old edifice with consequent improvement in judicial

efficiency. Id. More fundamentally, however, one must ultimately agree with Professor

Eisenberg' s claim that the economic effect of making simple donative promises enforceable is

indeterminate in the sense that one cannot predict with certainty whether enforcing them would, on

the whole, enhance or diminish efficiency. This, however, is by no means a problem peculiar to



2008] COMMODMCATION AND COLLABORATION 17

Against these weak substantive reasons in favor of enforcing donative
promises, Professor Eisenberg initially musters some process reasons not to
enforce them.

58
Donative promises generally are too easy to fabricate, and

affective donative promises, which by definition arise in a close relationship, are

far too likely to be made without adequate deliberation.59 Furthermore,
enforcement of donative promises would require adjustments elsewhere in our

system of contract law that would render it excessively messy and complicated.
60

For example, in civil law systems, where donative promises are sometimes

enforced, there are special defenses (e.g., improvidence and ingratitude) that

the question whether donative promises should be enforced. As Professor Eric Posner has

observed, indeterminacy seems to be a pervasive problem with economic models of contract law

sufficiently sophisticated to take account of the full range of variables and incentives that may be

affected by legal rules. Eric A. Posner, Economic Analysis ofContract Law After Three Decades:

Success or Failure? , 1 12 YALE L.J. 829, 838, 853-54 (2003). Posner's best example, in my view,

is his discussion of the continuing controversy among economics scholars over the question of

which remedy—expectation damages, reliance damages, or specific performance—is the most
efficient contract remedy. Id. at 834-39. The relevant range of variables for analysis includes the

incentive to breach or perform, the incentive to invest in reliance, the incentive to search for optimal

partners, the incentive to reveal information, the incentive to take precautions against breach, the

incentive to renegotiate after information is revealed, the possibilities for contract design, and the

ability of courts to acquire or verify relevant information. Id. Any single remedial rule my have

adverse economic effects on one or two of these incentives and variables and desirable effects on

others. Id. One can draw conclusions of relative efficiency only by isolating one or two variables

and drawing very cautious conclusions. Id. Aggregating all the variables and drawing an overall

conclusion concerning efficiency appears impossible in the absence of a vast amount of empirical

information that is unknown and, as a practical matter, impossible to gather. Id. No one, of course,

should draw the conclusion that the economic analysis of law should be abandoned simply because

it has not produced a comprehensive theory of contract in the mere thirty years Posner identifies

as the period of its existence. Id. However, Posner's analysis does suggest that the indeterminacy

in the economic effects of providing a remedy for simple donative promises should not count for

much either in favor of or against enforcing them. See id. at 854-55.

58. Eisenberg, Contract and Gift, supra note 1, at 828.

59. Id. I have previously expressed my skepticism concerning the adequacy of this

explanation for refusing to enforce donative promises. Wessman, Gatekeeper II, supra note 3, at

828-29. Although it is impossible to prove, it seems likely that there are more imprudent bargains

than imprudent gift promises. Id. Yet contract law neither refuses to enforce bargain promises on

that ground nor overtly polices bargain promises for impulsiveness or imprudence. Id. Indeed, the

instances of people donating themselves into insolvency are extremely rare, although there is one

recent and rather spectacular example. See James B. Stewart, The Opera Lover: How Alberto
Vilar's Passion for Philanthropy Landed Him in Jail, NEW YORKER, Feb. 13, 2006, at 108
(recounting the story, and ultimate financial collapse, of philanthropist who made charitable

donations of nearly 300 million dollars between 1996 and 1999). However, such instances are

newsworthy precisely because they are so unusual.

60. Eisenberg, Contract and Gift, supra note 1, at 828-29.



18 INDIANA LAW REVIEW [Vol. 41:9

must be developed in order to tailor the system to the morality of gift promises.
61

Those defenses require resolution of issues that would strain the capacity of our

system.
62

The process concerns identified by Professor Eisenberg have been the
subjects of extensive scholarly debate. Because, in previous work, I have

examined those process concerns and sided with those who regard them as either
exaggerated or best remedied by devices other than the retention of a requirement

of consideration,
63

the most important arguments made by Professor Eisenberg,
in my view, are the more novel ones that come next. Specifically, he argues that
there are two substantive reasons not to enforce simple donative promises. The
more easily comprehensible of the two builds on the third process concern he
identified earlier. Close attention to the morality of gift promises, he argues,

reveals a problem even deeper than the need to import special legal defenses to

which our system is unaccustomed and ill-adapted.
64

Donative promises, as part

of the world of gift, are subject to an extremely "fluid" range of implied moral

excuses. Indeed, the implication seems to be that the range of excuses is so

"fluid" that it could never be specified completely.
65

Tailoring our legal system

to the morality of gift promises and their corresponding excuses is more than
asking our system to do something for which it is ill-qualified; it is asking our

system to do the impossible. Indeed, the range of legitimate excuses for refusing

to perform donative promises is so extensive that the disappointed promisee is

normally morally obliged to release a repenting promisor.
66

Failure to do so is

to be ungenerous, and we should not give "legal muscle" to ungenerous donative
promisees by making simple donative promises enforceable.

67

Judging by the time he spends on it, Professor Eisenberg regards the other

substantive objection to enforcing simple donative promises as even more

serious. It is also a bit more difficult to restate. Invoking his metaphor of the

"world of gift," Professor Eisenberg argues that the world of gift would be

"impoverished" if simple donative promises were subjected to a regime of legal

enforcement.
68

This impoverishment would result from the "commodification"

of the gift relationship.
69

While the concept of "commodification" is neither specifically defined nor

intuitively transparent, it seems to refer to some form of degradation of the
particular functions of gifts and gift promises caused by enforcing the latter,

presumably with an award of money damages. Gifts and gift promises are
motivated by affective considerations, and they have an expressive or "totemic"

61. Id.

62. Id. at 829.

63. Wessman, Gatekeeper II, supra note 3, at 828-31, 836-40.

64. Eisenberg, Contract and Gift, supra note 1, at 829, 831 n.32, 849-50.

65. Id. at 829.

66. Id. at 849-50.

67. Id. at 850 n.70.

68. Id. at 847-49.

69. Id.



2008] COMMODMCATION AND COLLABORATION 1

9

function, in that a gift "reflects or manifests the relationship with the donee."
70

Gifts are one way we "indicate our favorites."71 That is why, even if a gift is a
gift of a commodity with monetary value, the commodity is not its main point,

and its value is not exhausted by the value of the commodity.
72 To subject gift

promises to legal enforcement would be to debase them by clouding the

promisor's motives at the time of performance (from both the donor's and

donee's perspectives),
73

converting the gift promise into a "cash equivalent" or

a "bill of exchange,"
74
and submerging "the affective relationship that the gift

was intended to totemize."
75 We should avoid thus degrading the world of gift

because the "world of gift is a world of our better selves, in which affective

values like love, friendship, affection, gratitude, and comradeship are the prime

motivating forces."
76 The somewhat ironic consequence is that donative

promises should remain unenforceable, not because they are too trivial to merit

enforcement, but because they are too important to be subjected to a legal

regime.
77

B. Criticism

1. The Complicated Concept of Commodification.—I shall first address
Professor Eisenberg's argument based on the concept of "commodification," as

it seems to be the laboring oar among his substantive reasons for the donative
promise principle. In order to evaluate the argument, it is necessary, as an initial

matter, to explore in more detail what it means to "commodify" something and

why (or when) "commodification" results in the degradation or debasement of
the thing commodified.

That initial step is not entirely easy. The terms "commodify" and
"commodification" are somewhat slippery and have been used in a variety of

ways.
78

In invoking the notion of commodification, Professor Eisenberg

expressly attributes the concept to a path-breaking article on the subject by

Margaret Jane Radin.
79

Radin, in turn, discusses what "commodification" means

70. Mat 844.
71. Id. at 848.

72. Id. at 844.

73. Id. at 848.

74. Id.

75. Id.

76. Mat 849.
77. Id.

78. Martha M. Ertman & Joan C. Williams, Preface: Freedom, Equality, and the Many
Futures ofCommodification, in RETHINKINGCOMMODMCATION 1,2-5 (Martha M. Ertman & Joan
C. Williams eds., 2005) (distinguishing different meanings of"commodification"); Note, The Price

ofEverything, the Value ofNothing: Reframing the Commodification Debate, 117 HARV. L. REV.

689, 689-90 (2003) (same).

79. Margaret Jane Radin, Market-Inalienability, 100 HARV. L. Rev. 1849 (1987), cited in

Eisenberg, Contract and Gift, supra note 1, at 847 n.64.



20 INDIANA LAW REVIEW [Vol. 41 :9

in some detail.
The term is obviously derived from the noun, "commodity," and Professor

Radin describes a commodity as having three essential characteristics. First, it
is "monetizable"; it has an "exchange value" that can be expressed in monetary

terms.
80

Second, it is fungible; it is interchangeable with any other commodity,

and any individual should be indifferent amongst the possession of the particular

commodity, a commodity of equivalent value, or the sum of money it is worth.81

Finally, it is detachable from the individual who owns or possesses it and, in
principle, fully alienable.

82

In a narrow sense, to say that something is "commodified" is simply to say

that it is the sort of thing bought and sold in a recognized market.
83 Even in a

narrow sense, saying that something is commodified can imply quite a

lot
—

"supply and demand pricing, brokerage and arbitrage, advertising and
marketing, stockpiling, speculation, and valuation in terms of the opportunity

cost of production."
84

In the broader sense (with which she is even more deeply
concerned), Radin speaks of"commodification" as the use of market rhetoric and

market methodology to characterize social interactions.
85

The use of "market rhetoric" is the conceptualization of all interactions as
sales and includes thinking of all the things people desire, aspire to, or need as

if they all were ordinary fungible goods, i.e., commodities.
86 Goods to be bought

and sold thus include not only bushels of wheat, but also "the functions of

government, wisdom, a healthful environment, and the right to bear children."
87

"Market methodology" consists primarily of the use of cost-benefit analysis to

evaluate interactions in terms of potential gains from trade.
88

It bears emphasis that neither Professor Eisenberg nor Professor Radin

believes that nothing should be "commodified." Indeed, there is nothing to

suggest that either has any objection in principle to the very large, well-organized

markets for ordinary goods or more intangible property that characterize the
current economy. Professor Radin' s target, in particular, is not commodification

as such, but "universal commodification," the view that all things and all

interactions are appropriately characterized in market rhetoric and evaluated by

market methodology.
89 What then, one might ask, should not be commodified?

The short answer seems to be that things that are "personal" should not be.90

"Personal" things, in this specialized sense, are things that are integral to the self

80. Id. at 1857, 1859 n.44.

81. Id. at 1859-60 n.44.

82. Id. at 1859-60 n.44, 1881.

83. Id. at 1859.

84. Id. at 1855.

85. Id. at 1859.

86. Id.

87. Id. at 1860.

88. Id. at 1859, 1861.

89. Id. at 1861.

90. Id. at 1880-81.



2008] COMMODIFICATION AND COLLABORATION 2

1

and to a proper conception of human flourishing.91 They include personal
attributes (bodily integrity, sexuality),

92
relationships (family, love, friendship,

and religion),
93

moral and political aspirations,
94

and even some intersections
with the social and physical world (one's work, one's home).

95
Although it is

difficult to articulate precisely, the "personal" seems to consist of all those

attributes and things with which we identify, both in the sense that they are part
of our self-image and in the somewhat deeper sense that they are part of who we
are (or choose to be, to the extent we can create ourselves).

What, then, is the harm of commodifying the personal? In part, the harm is
a form of error risk.

96
Cost-benefit analysis, and its attendant assumptions that

everything is monetizable and fungible, tends to undervalue components of

human well-being that people hold dear but that are difficult to evaluate in terms
of money.

97
This sort of systematic undervaluation can lead to poor social

decisionmaking. More fundamentally, however, universal commodification
distorts, and even insults, personhood.

98 To speak of rape or prostitution in
market terms, for example, is to treat bodily integrity as an object that can be

owned and as something monetizable and fungible.99 It degrades the value of the
attribute commodified and insults the person whose bodily integrity is at stake. 100

Taken to an extreme, it reduces the self to an empty, ghostly possessor of

detachable, fungible objects, entirely devoid of any individuating

characteristics.
101

Finally, and perhaps most importantly for Radin, the way
humans conceptualize the world—and here, I think, she is primarily talking about
the social world—changes the world. 102 The complete dominance of market
rhetoric and market methodology would lead to an inferior conception of what
it is to be human and what it is for a human being to flourish. 103

Commodification is obviously a complex concept, and the implications of its

application to any particular phenomenon or interaction cannot be expected to be
straightforward. In particular, it is not clear how much of Radin' s rather
expansive notion of commodification is implicitly incorporated into Professor

Eisenberg's objection to the enforcement of simple donative promises.

Accordingly, it is now necessary to take a closer look at his argument and
analyze which aspects of the notion of commodification are implicated in any

91. Mat 1881, 1884-85.
92. Id. at 1879-81.

93. Mat 1906.
94. Id.

95. Id. at 1918-20.

96. Id. at 1878.

97. Id.

98. Mat 1879-81.
99. Id. at 1880.

100. Id. at 1881.

101. Id. at 1881, 1885.

102. Id. at 1881-86.

103. Id.



22 INDIANA LAW REVIEW [Vol. 41:9

possible enforcement of simple donative promises and why those aspects of
commodification would be objectionable.

2. Possible Implications of Commodification—
a. Market trading.—Initially, it is reasonably clear that by claiming that

enforcement of simple donative promises would commodify them, Professor
Eisenberg is not confining the notion of commodification, or his objection to it,

to Radin's narrowest sense of commodification, in which something is
commodified if it is actually bought and sold in a market.

104 To be sure, in
specifying the essential differences between bargains and gifts, he does point out
that, in a bargain transaction, it is considered perfectly permissible for the party

who is promised delivery of a particular commodity to resell it immediately in
the market.

105
In contrast, the recipient of a simple donative promise to give the

same commodity would insult the donor by immediately reselling it.
106 A gift or

gift promise, he contends, has an expressive or "totemic" function that manifests

the affective relationship between the donor and donee, and bargain transactions

characteristically do not.
107

It is this expressive function of the gift promise (or,

for that matter, the completed gift) that seems somehow incompatible with
resale.

108

Nevertheless, it would be a mistake to assume Professor Eisenberg objects
to enforcing donative promises out of fear that enforcing them would facilitate
a secondary market in gift expectancies. There does not seem to be much of a
market for promisees' interests under simple donative promises at the moment,
and that may be due, at least in part, to the fact that such promises are
unenforceable under current law. If they were enforceable, it might be easier to
develop a market for them. Even if such a market were deemed undesirable,
however, it would seem easy enough to prevent it without banning enforcement
of gift promises entirely. The common law judges were, after all, able to devise
limits on assignment and delegation in bargain transactions where it seemed
desirable because of the personal character of the performance to be rendered by

104. Id. at 1859.

105. Eisenberg, Contract and Gift, supra note 1, at 844.

106. Id.

107. Id.

108. Specifying the nature of the incompatibility and its strength, on the other hand, is

somewhat difficult. In particular, I am not certain there would be universal agreement on the
question whether a donee or donative promisee who resold the subject of a gift had committed an

offense to etiquette or an offense to morals. Moreover, if one expands the discussion to donative

transfers generally, social attitudes toward alienation and resale, and the legal responses to those

attitudes, begin to appear more complicated. Bequests, of course, are a form of donative transfer,

and they share a certain degree of insecurity with donative promises, in that there is nothing to

prevent a testator from changing his will. Yet pledges or sales by potential beneficiaries of

expectancies under wills have a long, if somewhat colorful, history. These complications, however,

are not material to the present discussion. We may agree that it is generally regarded as, at the very
least, supremely tacky to resell one's birthday gifts.



2008] COMMODIFICATION AND COLLABORATION 23

either party.
109

If restrictions on assignments of gift promises are even more
broadly desirable, a blanket (or presumptive) prohibition of such assignments

would seem to be an obvious (and even more administrable) judicial response.
In principle, ofcourse, a statutory restriction of such assignments is also possible.

It is extremely unlikely, at the outset, that Professor Eisenberg's objection to

enforcing simple donative promises could be answered so easily. One may infer,
therefore, that he is really arguing that enforcing simple donative promises would
commodify them in Professor Radin's second, broader sense. 110 However, the
exact mechanisms by which this commodification would take place and by which

it would cause harm are not fully explained. In my view, the best way to explore
what he means to say is to isolate and analyze specific strands of his argument

that correlate to elements of Professor Radin's more expansive and systematic
exposition of the meaning and implications of "commodification."

b. Monetization.—Initially, it is possible that Professor Eisenberg's
objection to enforcing simple donative promises is an objection to the

"monetization"
111

entailed by commodification. Presumably, if we were to
enforce such promises, we would do so by providing a damage remedy, just as
we do in the case of bargain promises. Absent the special circumstances that
justify a decree of specific performance in the case of bargains, the typical

judgment in a successful action on a simple donative promise would be an order

that the defendant pay a specific sum of money. Some scholars have suggested
that monetization itself is one evil ofcommodification, an expression of the value

of something belonging to one sphere in terms of a metric appropriate to an

entirely different, and incommensurable, sphere.
112 Such an interpretation of

Professor Eisenberg's argument is suggested by his division of the transactional

world into two "worlds," the world of contract and the world of gift.
1 13

It is also

suggested when he observes that, though a gift may be a gift of a commodity, the
commodity does not exhaust the value of the gift and is not even its most
important aspect.

114

It is quite clear that Professor Eisenberg adopts the view that an affective

gift, properly understood, can never really be completely monetized, in the sense

109. See, e.g., Restatement (Second) of Contracts §§ 317-19 (1981) (summarizing

common law limits on assignment of contractual rights, delegation of contractual duties, and

delegation of performance of conditions).

110. See Radin, supra note 79, at 1859 (distinguishing narrow and broad senses of

"commodification.")

111. Id. at 1857, 1859 n.44.

112. See Ertman & Williams, supra note 78, at 4 (describing the conventional assumption of
"hostile worlds" formed by the economic arena and the arena of intimacy and altruism); see also

Margaret Jane Radin & Madhavi Sunder, Introduction: The Subject and Object of
Commodification, in RETHINKING COMMODIFICATION, supra note 78, at 8, 15-16 (describing and

critiquing Michael Walzer's conception of separate "spheres"); Note, supra note 78, at 690-93

(attributing the view to Cass Sunstein, Andrew Kimbrell, and Elizabeth Anderson).

113. Eisenberg, Contract and Giji, supra note 1, at 823-24.

114. Id. at 844.



24 INDIANA LAW REVIEW [Vol. 41:9

that there is residual value in a gift after one has completely expressed the

monetary value of the commodity (if any) that is the subject of the gift. 115 He
may also accept the view that this residual value is not properly or completely
measurable in monetary terms. Both of those positions seem to me to be
unassailable. However, even if one accepts them, it does not follow that simple

donative promises should be unenforceable.

The reason that conclusion does not follow is that the assignment of a market
value to a particular thing does not necessarily degrade or debase it. Professor

Radin makes several observations in this regard that are instructive. There are
some instances in which the mere assignment of a price to something is itself
insulting or morally offensive.

116 To use two of her recurring examples, nearly
everyone cringes at the mention of the market price of a healthy baby

117
or the

costs (as opposed to the benefits) of rape.
118

However, not everything personal

falls into this category.
119

Indeed, there are some things essential to the self-
definition of most people that clearly have ascertainable market values but are

neither insulted nor debased by monetary valuation.

Unless one finds one's job particularly loathsome, for example, one is likely

to regard one's work as "part of who I am." It also seems plausible to say that
most people in our culture regard their homes as, in some sense, expressions of
themselves and as repositories of memories and experiences that cannot be

quantified. Yet the market for labor is quite robust, and we often speak of the
"going rate" for particular work. The market for houses rises and falls, but the
real estate appraisers seem not to go hungry. The existence of the labor market
offends no one but the few remaining committed Marxists,

120
and absent state or

military control of the housing supply, it is difficult to understand how housing
could be allocated except by sale and rental markets. More importantly, the
existence and vigor of those markets misleads very few into thinking that the

value of work is exhausted by wages or that the value of a home is exhausted by
its price.

121
Such assumptions would be mistakes, perhaps even offensive ones,

but we do not typically make them.
Similarly, it does not seem likely that providing a damage remedy for breach

of a simple donative promise would deceive anyone into believing that the sum
awarded in damages exhausted the value the promisee would have derived from

the gift had it been completed. To be sure, individuals sometimes refer to

115. Id.

1 16. Radin, supra note 79, at 1880-8 1

.

117. Mat 1925-28.
118. Id. at 1879-81.

119. Id. at 1906, 1908-09.

120. We may, I think, safely ignore both of them.
121

.

The examples of work and home are drawn from Radin, who uses them as examples of

"incomplete commodification," i.e., things that have a market value but whose value to most people

is not exhausted by value in the market. Radin, supra note 79, at 1914, 1918-21. Indeed, she

concedes them to be examples of instances in which partial commodification of a thing does not

have a domino effect leading to elimination of the non-commodified version of the thing. Id.



2008] COMMODIFICATION AND COLLABORATION 25

expectation damages as the monetary "equivalent" of performance or as putting

the aggrieved party in the "same position" as full performance. When we are
careful, however, we are compelled to admit that such statements are
exaggerations, a sort of shorthand expression of our primary remedial goal

without all its qualifications.

We may start with a presumption that an aggrieved plaintiff in contract is to
be given the "value of the promised performance." However, there are more

specific rules that chip away at the potential recovery and deny the plaintiff the
full equivalent of the performance of the promise. Some rules, like the refusal
to shift the victorious party's attorneys' fees to the loser, amount to a refusal to

award perfectly quantifiable forms of loss for reasons of policy, including the

policy in favor of facilitating resort to the courts.
122 The duty to mitigate

damages sometimes dictates that quantifiable losses, though actually suffered and

easily calculated, may not be recovered in order to serve a policy in favor of
minimization of the costs of contractual failure.

123
Other rules, such as the

prohibition of the recovery of damages for emotional distress in an action on a

contract, seem to be motivated, at least in part, by the very difficulty of
quantification.

124
Indeed, most courses in contract law probably include some

consideration of a case or two in which, even when the court is trying to
compensate the plaintiff in full for breach of an ordinary bargain promise, it falls

short because some component of "personal" value is neglected. 125 No serious
student of common law contractual remedies would be tempted to infer from the
provision of a damage remedy that the remedy was the full equivalent of the
value of the promise. There are a variety of ways in which our damage remedies,
for reasons of social policy, fail to provide the full value of the broken promise

(or its hypothetical performance). However, there is nothing about that fact that

insults or debases the interest we are trying to compensate. It merely reflects the
fact that multiple policies are at work in our system of contract remedies, and we
sometimes are required to make trade-offs among them.

In sum, Professor Eisenberg may be perfectly correct in asserting that a
damage remedy for breach of gift promises would, as a practical matter, provide
incomplete compensation because gifts are not fully monetizable. However, it

does not follow that the incompleteness of the remedy distorts our perceptions

of the value of gifts in general or particular gift transactions. Nor does it follow
that no remedy at all is superior to incomplete compensation. We certainly do
not accept that conclusion in the case of bargain promises, and Professor

122. John D. Calamari & Joseph M. Perillo, The Law of Contracts § 14.35 (4th ed.
1998) ("The apparent rationale is that a contrary rule would discourage impecunious plaintiffs from

prosecuting meritorious claims.").

1 23

.

Restatement (Second) of Contracts : Avoidability as a Limitation on Damages

§ 350(1) cmt. a (1981); 3 E. Allan Farnsworth, Farnsworth on Contracts § 12.12 (3d ed.

2004).

124. 11 Joseph M. Perillo, Corbin on Contracts § 59. 1 (rev. ed. 2005) ("Mental distress

is not itself a pecuniary harm, and it can scarcely be said to be measurable in terms of money.").

125. See, e.g., Peevyhouse v. Garland Coal & Mining Co., 382 P.2d 109 (Okla. 1962).



26 INDIANA LAW REVIEW [Vol. 41:9

Eisenberg has not supplied persuasive reason to accept it in the case of donative

promises.

c. Fungibility.—Further strands of Professor Eisenberg' s argument require
exploration because they suggest he may be focusing on other elements of the
notion of commodification. At one point, he argues that enforcing donative

promises would degrade donative promises into bills of exchange and the
performance ofdonative promises into the redemption ofbills.

126
This somewhat

hyperbolic argument is reminiscent of a second aspect of commodification

identified by Professor Radin. Specifically, to "commodify" something is to
imply or accept the view that it is fungible, in the sense that one who holds it
should be indifferent amongst holding that thing, an equivalent sum of money,
or another thing with the same monetary value.

127
In a similar vein, other

scholars have suggested that the vice of commodification goes beyond confusing

spheres of valuation by "monetizing" something that cannot be valued in money.

It consists also in the assertion of equivalence between the incommensurable

spheres of valuation that have been confused.
128

If this is the aspect of

commodification Professor Eisenberg wishes to incorporate, his argument is that

the existence of a damage remedy for a broken donative promise would not only
fail to capture important but unquantifiable elements of the value of the promise,

but also generate some sort of implication that the remedy had, contrary to fact,
captured all that there is to capture.

Assuming that Professor Eisenberg is thus making an argument based on the
undesirability of false implications of fungibility, there is at least one intuitive

objection to his argument. Assume that there are incommensurable spheres of
valuation and that the assertion of equivalence between things that inhabit

different spheres is at least deceptive and perhaps degrading to one sphere.

Would one not intuitively suspect that the primary culprit in generating such an
implication of equivalence would be the voluntary exchange transaction, not the
voluntary gift or the forced transfer by way of legal remedy? 129

If we believe the economists (or indulge their assumptions), each party to an
exchange transaction values what she receives more highly than what she gives
up.

130 We may infer that, in some range of exchange transactions involving
things of incommensurable value, at least one party is making a false assumption
of equivalence. To use the obvious example, if a market for babies is permitted

126. Eisenberg, Contract and Gift, supra note 1, at 848.

127. Radin, supra note 79, at 1859-60 n.44.

128. See Michael J. Sandel, What Money Can't Buy: The Moral Limits of Markets, in

Rethinking Commodification, supra note 78, at 122, 124 (describing the "assumption that

informs much market-oriented thinking" that "all goods are commensurable, that all goods can be

translated without loss into a single measure or unit of value"); see also Note, supra note 78, at

703-10 (articulating and exploring the ramifications of transactions expressive of value

equilibrium).

129. Note, supra note 78, at 705-07 (arguing that gifts, compensatory damages, and life

insurance do not express value equilibrium).

130. Eisenberg, Principles, supra note 33, at 643.



2008] COMMODIFICATION AND COLLABORATION 27

and a baby is sold to adoptive parents, one fears that at least one party

undervalues the baby, not in the sense that she demands or pays the wrong price,

but in the sense that she mistakenly assumes babies can be valued in money.
131

However, it is difficult to see why or how gift transactions or promises could
generate the same kind of undesirable implications.

Even if one accepts the notion that a trade "implies" that the things traded are
commensurable and equivalent (or that the parties to the trade believe that they

are), gifts and donative promises, by definition, are not trades, as Professor

Eisenberg rightly emphasizes.
132

Therefore, his argument must be that the

provision of a damage remedy for a broken donative promise is, in effect, a
forced sale of the promise for the "price" of the damage award and that the
forced sale generates the implication that: (a) the value of the donative promise

(or the completed gift it might have become) is appropriately expressed solely in

monetary terms; and (b) that the damage award exhausts that value.
Yet the coercive character of legal remedies seems incompatible with any

such "implication." Part of what makes it plausible to assert that parties to trades

"imply" that the things traded are commensurable and equivalent in value is that

the parties to a trade agree to it. That is why it makes sense to suppose the trade
reflects their value judgments. It is difficult to imagine, however, how or why
the same implications should arise if a disappointed donative promisee is able to
harness the coercive mechanisms of the state to force the defaulting promisor to

pay whatever the state, through its courts, deems appropriate. Why should it be
assumed that, by invoking the damage remedy, the promisee reflects his belief
that the damage award is just as valuable as the completed gift would have been

131. The inference is far from iron-clad. There is the theoretical possibility that the seller only

cares about money, and the buyer only cares about children. In that event, both will be willing to

make the sale, but neither asserts nor implies that it is an exchange of equivalents. A more realistic
possibility is that neither the buyer nor the seller believes babies can be valued in money, but the

seller is compelled by dire poverty to sell the baby anyway. Some scholars object to

commodification precisely on the grounds of its potentially coercive and adverse distributional

effects. See Radin & Sunder, supra note 1 12, at 1 1 (noting that "[u]nequal distributions of wealth
make the poorest in society, with little to offer in the marketplace, more likely to commodify

themselves"); Sandel, supra note 128, at 122-23 (distinguishing commodification arguments from

coercion from commodification arguments from corruption); Note, supra note 78, at 690-91

(articulating further variations in arguments from coercion). Because this strain ofcommodification

theory does not feature in Professor Eisenberg' s discussion of donative promises, I have ignored

it for purposes of this Article. More pertinent for purposes of this Article is a rather large and

obvious class of common transactions that involve exchanges without any implication of

equivalence. If I buy a life insurance policy or an accidental death and dismemberment policy, I

do not thereby accept or imply that my life or limbs are only as valuable as the sum for which they

are insured, or even that they can be valued in money. All I imply, if anything, is that there would

be adverse economic consequences if I lost them and that I want to guard myself or my loved ones

from those potential consequences. Thus, even observable voluntary exchange transactions do not

necessarily involve an implication of equivalence.

132. Eisenberg, Contract and Gift, supra note 1, at 841-46.



28 INDIANA LAW REVIEW [Vol. 41:9

or his indifference between the two?

Although Professor Eisenberg does not, Professor Radin provides the

building blocks of an argument that the provision of a judicial damage remedy
generates an implication of equivalence between the money damages and the
subject matter of the promise or contract for which the damages are a remedy.

133

She suggests, for example, that even if the government decriminalizes

prostitution, it should not provide a contractual damage remedy in the event of
a refusal to perform.

134 Such a damage remedy would be "tantamount to
complete commodification" of sexuality because an "official entity" would place

a "fungible value" on the promised performance.
135

She does not specifically say

why an "official" pronouncement would be particularly conducive to complete
commodification, either generally or with respect to sexuality in particular.

However, she argues that one of the dangers of market rhetoric and methodology

is that it sometimes has a domino effect, in that the commodified version of a
thing or attribute can crowd out the more desirable, non-commodified version. 136

She also regards sexuality as particularly vulnerable to the domino effect.
137

Whatever one thinks of the foregoing argument as applied to the somewhat
special case of sexuality, a certain degree of general skepticism concerning the

commodifying effect of "official" acts or pronouncements is warranted. Are we
really to suppose that, if a damage remedy is available for breach of a gift
promise, people will begin to believe that damages are equivalent in value to a

completed affective gift (including its "totemic" aspects) or that they will be

indifferent between the two? It certainly would not be a rational inference for

them to draw, given the fact that the damage remedies in contract law, in some
respects, provide less than full compensation even for elements of loss that are

quantifiable.

Is there some reason to suppose people will draw such inferences irrationally,
as a kind of subliminal effect of the availability of damages? It is difficult to see

why they would. Particularly in the field of torts, in which there are damage
remedies for all sorts of injuries that are difficult to quantify, there are no

apparent subliminal effects of that kind. Someone who recovers damages in
battery for a beating or for intentional infliction of emotional distress is not likely

to conclude that the value of bodily integrity or emotional well-being is

completely expressed in money and that the money is just as satisfactory. Nor
does it seem plausible to suppose that jurors or other outside observers would
draw such a conclusion. State-mandated worker's compensation schemes

provide detailed (some would say ghoulish) schedules of "benefits" for specific

types of injury, and no one seems to conclude that the monetary amounts

specified are interchangeable with body parts. One may doubt that the provision

133. Radin, supra note 79, at 1923-25.

134. Id. at 1924.

135. Id.; see also Margaret Jane Radin, Contested Commodities, in RETHINKING

Commodification, supra note 78, at 81, 90-91 (articulating a similar argument more recently).

136. Radin, supra note 79, at 1912-13.

137. Id. at 1922.



2008] COMMODIFICATION AND COLLABORATION 29

of a damage remedy even expresses some sort of public judgment of fungibility.
More importantly, it seems unlikely that the public at large would be deceived
or confused by the "official" pronouncement of equivalence, even if it existed.

Thus, there is little reason to believe that enforcing simple donative promises

would lead to undesirable monetization or assumptions of fungibility, as
Professor Eisenberg suggests. However, there is still more to his argument than
has been articulated up to this point. Specifically, there are two more strands of
his argument that find parallels in Professor Radin's extended analysis of the

concept of commodification.

d. The transformative power ofcommodification: Epistemic uncertainty.—
Professor Eisenberg makes two arguments that are reminiscent of Professor
Radin's claim that market rhetoric and methodology have a kind of

transformative power—a power to change the social phenomena they are used
to describe and analyze. Eisenberg first argues that if a damage remedy were
available for simple, affective donative promises, the resulting commodification

would disable the promisee (and perhaps even the promisor) from knowing
whether the promisor' s performance was motivated by the same love, friendship,
or affection that generated the promise in the first place, or whether it was
motivated by a desire to discharge a legal obligation or avoid a lawsuit.

138
At the

point at which the promisor is called upon to perform, his motives would
inevitably be mixed.

139 The ambiguity in the promisor's actual and apparent
motives would effectively degrade the gift, as it would no longer be, or be
perceived to be, an expression ofthe affective relationship between the donor and

donee.
140

It is important, at this point, to distinguish the subtle claim Professor

Eisenberg is making from a more obvious one upon which he does not rely. He
is not simply arguing that a donative promisor who must be sued and coerced into
paying a judgment is no longer acting out of love. The motives of such a
promisor are quite transparent. Rather, Professor Eisenberg is arguing that even

the theoretical availability of a damage remedy clouds the motives of a donative
promisor who, in fact, performs voluntarily.

This argument exaggerates both the difficulty of assessing the motives of

others and the importance of being certain about them. We do not directly
perceive the thoughts, feelings, and motives of other human beings in the
immediate way we experience our own. If the requisite kind of knowledge is
Cartesian certainty, it must be conceded that a donative promisee will not "know"
what precisely moves the promisor to keep his promise. However, that is true
whether the donative promise is legally enforceable or not. There are, after all,

a range of motives to keep a donative promise, even if it is not enforceable and

even if the promisor secretly would prefer not to perform. The promisor might
perform out of a desire to avoid a confrontation with the promisee, out of a desire

to avoid a loss of reputation among other friends or family members, or simply

138. Eisenberg, Contract and Gift, supra note 1, at 848.

139. Id.

140. Id.



30 INDIANA LAW REVIEW [Vol. 41:9

out of a desire to preserve a self-image as a person of his or her word. The
promisor' s motives can never be fully transparent, and the cloud ofour ignorance

of them is not made materially darker or lighter depending on whether or not the
promise in question carries a legal remedy.

Though troubling to philosophers, this kind of theoretical uncertainty is not
of great practical importance. Normally, we do not require Cartesian certainty.
If it becomes important to us to ascertain the motives of another person, we make
judgments about those motives based upon what the person says, what she does,
what gestures she makes, what we have learned over time about her character,
and a variety of other factors. To be sure, those judgments are at best educated
guesses from a strict philosophical point of view. They serve our purpose despite
their status as educated guesses, presumably because they are the best that we can
do. Thus, even assuming it is important to the preservation of the peculiar

character or "totemic" aspects of gifts and gift promises that the promisor's

motives for performing be assessed, the myriad factors that make such
assessments practically possible are available whether the promise is enforceable

or not.
141

Indeed, since the prototypical cases of simple donative promises are

those between family, friends, and other close associates, the cues we usually use
to interpret motives (especially those based on long familiarity) would seem to

be more readily available precisely because of the affective relationship.

e. The transformative power of commodification: Poisoning the well.—
Closely on the heels of the argument just discussed, Professor Eisenberg makes

a second, conceptually distinct claim about the way in which enforcing donative
promises would commodify them and thereby transform and degrade them as
social phenomena. Gifts and gift promises, it should be recalled, express the

donor's relationship with and affection for the donee.
142

Affection of that kind,

once withdrawn, cannot be restored by compulsion.
143

However, if there is to be

a damage remedy for the breach of a donative promise, it must take the form of
a forced transfer. The problem is that a compelled "gift" has lost its "gift-
ness."

144
It no longer performs the expressive function it might have, i.e., it no

longer reflects and expresses the affective relationship between promisor and

141

.

Indeed, there is nothing unique about gift promises in this respect. Even the recipient of

an ordinary bargain promise may have every bit as good a reason as the recipient of a donative

promise to want to know what moves the promisor to perform. Continuing relationships and trust

play an important role in the business world. The parties to recurring bargain transactions might

be dramatically more comfortable if each believes the other performs for reasons other than the fear

of legal sanctions. If that is sometimes important, however, the fact that legal sanctions have long

been available for bargain promises does not seem to prevent the parties to bargains from

determining that performance actually occurs for more noble reasons.

142. Eisenberg, Contract and Gift, supra note 1, at 844.

143. Id. at 848.

144. Id. (quoting Thomas Mayhew, Discussion Questions for Seminar in Contracts Theory

(unpublished paper, on file with author)).



2008] COMMODIFICATION AND COLLABORATION 3

1

promisee.
145

Enforcement of the gift promise effectively destroys the gift.
146

The argument has great intuitive appeal, largely because most of its premises
are true. A compelled gift is indeed no gift at all. Legal remedies are not and
cannot be anything but a form of compulsion by the state. Nevertheless, the

argument is mistaken.

It may be observed, initially, that providing a legal remedy for breach of a
bargain promise destroys the underlying bargain in the same sense in which

enforcing a donative promise destroys the gift. A bargain transaction is a
voluntary transaction by definition, just as a gift transaction is. If Leviathan

enforces a bargain promise by compelling the payment of damages, the party

compelled to pay is no longer willingly fulfilling a voluntary bargain.

Although there seems to be universal agreement that we should (and do)
enforce bargain promises, there remains much disagreement about the reasons
why. Some argue that we should enforce them because enforcing exchange
promises enhances utility or social and economic coordination,

147
while others

argue that enforcement serves moral ideals such as autonomy.
148

Whatever the

true or best reasons are, however, one thing is clear: we do not enforce bargain
promises because we are under an illusion that a transfer forced by the state can
recreate the halcyon days when the two parties to a bargain contemplated and
agreed on a voluntary exchange. However, the destruction of the bargain qua

voluntary transaction actually precedes the intervention of the state. One party'

s

decision to breach is what really puts an end to the underlying, voluntary bargain.

We attach a legal sanction because doing so fits our best conception of sound
morals or good social policy.

Similarly, in the case of a donative promise, the promisor' s decision to break

the promise destroys the contemplated gift, in that it represents (or may
represent)

149
a withdrawal of affection. If we make a social decision to provide

the disappointed promisee a damage remedy, it is not because we believe we can
turn back the clock and restore the affective relationship or the voluntary

character of the gift. That means that there is an important sense in which
damages are incomplete. However, if, as I (and many others) have argued at
length elsewhere,

150
the very reasons that support enforcing bargain promises

support enforcing gratuitous promises as well, the fact that the remedy must take

the form of a forced transfer should be no barrier to enforcement in either case.

Thus, when one separates the strands of Professor Eisenberg's argument and

145. Id.

146. Id.

147. Professor Eisenberg has long held this view. Eisenberg, Contract and Gift, supra note

1, at 835-36; Eisenberg, Principles, supra note 33, at 643, 652.

1 48

.

See Charles Fried, Contract as Promise: ATheory ofContractual Obligation
1-6 (1981); see also Lon L. Fuller, Consideration and Form, 41 COLUM. L. REV. 799, 806-10

(1941).

149. The qualification is necessary, because a donative promisor who breaks his promise

because it is simply impossible to keep does not signal a withdrawal of affection from the promisee.

150. See Wessman, Gatekeeper II, supra note 3, at 715-16, 819-26.



32 INDIANA LAW REVIEW [Vol. 41 :9

unpacks the concept of "commodification," that concept provides little direct

support for a substantive argument against enforcing simple donative promises.
151

Professor Eisenberg's second substantive argument against enforcement must

now be addressed.

151. The qualifier "direct" must be added because a brand-new form of commodification

argument appeared very recently in David Gamage & Allon Kedem, Commodification and Contract
Formation: Placing the Consideration Doctrine on Stronger Foundations, 73 U. Cm. L. Rev. 1299

(2006). The authors develop an argument for the conclusion that the presence of at least nominal

consideration should be both "a necessary and sufficient condition" for the enforcement of a

promise. Id. at 1367. They do so, in part, by appealing to what they call "anticommodification

norms." Id. at 1302. Such norms, they argue, prevent potential promisors and promisees from

resorting to the expression of merely nominal consideration in certain social contexts. Id. at 1299.

The social contexts in question include a range of gift promises.

Gift promisors and promises cannot resort to nominal consideration as a device for making a

gift promise enforceable (when it otherwise would not be) because anticommodification norms

prevent them from speaking in such terms. Id. at 1328. They further argue that such gift promises

should not be made enforceable through the provision of some other legal device that the parties

might deliberately invoke. Id. at 1337. Providing a mechanism for legal enforcement could

generate an inefficient signaling spiral, as promisors in such transactions invoked the mechanism

in order to signal their reliability to promisees. Id. at 1343-44. The spiral, in turn, could reduce

overall welfare, both by binding promisors who really did not wish to be bound and by causing

promisors to reduce the "size" (i.e., value) of what they promised to suboptimal levels. Id. at 1346.

The details of the argument are intriguing and very complex. For present purposes, however, it is

sufficient to emphasize that it is a very different kind of commodification argument than that made

by Professor Eisenberg.

Professor Eisenberg's appeal to the notion of commodification is both normative and direct.

He believes that commodification is bad and that enforcing simple donative promises would

commodify them. Eisenberg, Contract and Gift, supra note 1, at 848-49. Therefore, according to

Eisenberg, we should not enforce them. Id. In contrast, one might say that Professor Gamage and

Mr. Kedem appeal to the notion of commodification indirectly and descriptively. Although one

gets the impression that they do, in fact, subscribe to anticommodification norms, nothing about

their analysis requires them to do so.

For their analysis, the significance of anticommodification norms derives from the status of

those norms as empirical social facts. Gamage & Kedem, supra, at 1358. In our culture, people
believe in anticommodification norms, and certain factual consequences follow. Given further

hypothetical facts (in this case, an option to make gift promises legally enforceable), certain other

factual consequences might follow, and if they did, those consequences would be undesirable.

However, the reason they would be undesirable is because they reduce welfare. Id. at 1355-56.

The norm that really drives the analysis of Professor Gamage and Mr. Kedem is welfare

maximization/efficiency, placing them comfortably in the tradition of law and economics. Instead

of making a direct ethical appeal to norms against commodification, the authors use them as causal

links in a chain leading to inefficient outcomes.

In part because the argument is so different from Professor Eisenberg's, and in part because

of its complexity, evaluating and responding to the Gamage-Kedem analysis would require a

separate article. I hope to write such an article, but I will not attempt to do so here.



2008] COMMODMCATION AND COLLABORATION 33

3. The Range of Excuses for Not Performing Donative Promises.—The
second argument relies on certain premises about the "fluid" range of moral

excuses for failing to perform a donative promise.
152 The argument is slightly

ambiguous because the critical premise appears to have two versions, a strong

thesis and a more moderate thesis.

The strong thesis is the proposition that there are so many excuses for failing
to perform a donative promise that a donative promisee is always, or almost

always, morally obliged to release a promisor who wishes to be released. 153

Accordingly, donative promises should not carry a legal remedy because any

time a donative promisor has a reason not to perform he has no moral obligation

to do so. Conversely, if the donative promisee needs the compulsion of the state

to secure performance, or its monetary equivalent, it should not be available to

him. Attaching legal sanctions to promises that are not even morally binding

cannot be justified.
154

The strong thesis is thus a claim that few, if any, donative promises are
morally binding in circumstances in which the promisor would not want them to

be. One must concede that, if the strong thesis were true, it would provide a
reason not to enforce the simple donative promise. However, if the strong thesis

is tested against our shared moral intuitions, I suggest there is little reason to

believe it to be true. For example, consider the case of a mother who promises
to finance her daughter's medical school education. Most people would agree
that the mother has a moral excuse for breaking the promise if she falls seriously

ill and incurs crippling medical expenses or if she suffers severe financial

reverses that make her unable to perform except by rendering herself destitute.
The same is probably true if the daughter physically assaults the mother or libels
her publicly. Professor Eisenberg might add that the mother is excused if she

finds she needs the money to start her own new business. 155 Surely, however, it
matters very much why the mother wants to break the promise, and there are
certain reasons that most people would find unacceptable. If the mother wishes

to renege because, for example, it would interfere with her fondness for whisky

152. Eisenberg, Contract and Gift, supra note 1, at 829.

153. "It may be wrong for a donative promisor to break a donative promise but also wrong for

the promisee to insist on performance, because under the morality of aspiration, where a donative

promise is made for affective reasons the donative promisee is normally obliged to release a

repenting promisor." Id. at 849 (emphasis added).

154. There is a certain irony in this argument. Traditionally, scholars have emphasized that

moral obligation is not alone a sufficient reason to enforce a promise. See, e.g., Eisenberg,

Principles, supra note 33, at 640 ("A promise, as such, is not legally enforceable."); id. at 643 ("As

a substantive matter, the state . . . may justifiably take the position that its compulsory processes

will not be made available to redress the hurt caused by every broken promise, but only to remedy

substantial injuries, prevent unjust enrichment, or further some independent social policy, such as

promotion of the economy.") The suppressed premise of Professor Eisenberg' s more recent

argument is that moral obligation, nevertheless, is or should be a necessary condition of

enforcement.

155. Eisenberg, Contract and Gift, supra note 1, at 829.



34 INDIANA LAW REVIEW [Vol. 41:9

or casino gambling or her desire to amass a fleet of sports cars, most people

probably think she would wrong her daughter by breaking the promise. 156 The
strong thesis thus exaggerates the range of moral excuses available to the

donative promisor.

In part for that reason, it seems more plausible to attribute the moderate
thesis to Professor Eisenberg. The moderate thesis is not a claim about how
many or how few donative promises are morally binding, but is rather a claim
about our ability to describe which ones are binding. More specifically, the
moderate thesis is the claim that donative promises are subject to a broader range

of moral excuses than other kinds of promises and, most importantly, that the

range of moral excuses can never, even in principle, be completely specified.
157

Professor Eisenberg does not say why the range of excuses can never be a closed
set, but it may have something to do with the restricted range of promises upon
which he is concentrating his attention. Once charitable subscriptions are placed
to one side,

158
the category of simple donative promises reduces to promises

(without accompanying reliance) among family, friends, and close associates.
The dynamics of such relationships are notoriously complicated. He may be
arguing that no matter how comprehensive our list of moral excuses appeared to
be, we could always imagine some interaction between donor and donee that
could change the circumstances enough to generate an additional excuse.

159 The
range of relevant factual variations defies any simple formulation of a rule on

excuses. Accordingly, it is better to refuse enforcement of simple donative

promises than to permit enforcement subject to a range ofexcuses we cannot ever
really capture.

156. Between the extremes of clearly meritorious excuses and clearly unacceptable ones, it is

possible to imagine borderline cases upon which reasonable people might disagree. For example,

if a mother wishes to break her promise to finance her daughter's medical school education to

enable her to finance the law school education of a more devoted niece instead, there would

probably be some disagreement about whether she was justified in doing so.

157. The moderate thesis may be what Professor Eisenberg means by the statement, "It is

doubtful whether the formal legal system could deal adequately with the fluid nature of these

excuses, because the equilibria of affective relationships are too subtle to be regulated by legal

rules." Eisenberg, Contract and Gift, supra note 1, at 829. The moderate thesis is also suggested

by his discussion of the claim by Professors Goetz and Scott that the terms of a donative promise,

and particularly the regret contingencies that would cause a donative promisor to wish to renege,

are normally incompletely specified in the promise. See id. at 830-3 1 (discussing Charles J. Goetz

& Robert E. Scott, Enforcing Promises: An Examination of the Basis of Contract, 89 YALE LJ.
1261 (1980)).

158. Professor Eisenberg approves of enforcing promises to donate to charities on grounds of

public policy. See supra note 43 and accompanying text.

159. For example, if Leviathan had decided that donative promisors were excused from

performing in cases of donee assault on the donor, donee libel of the donor, the donor's financial

reverses, the donee's ingratitude, destruction of the donor's property by the donee, etc., Leviathan

would still have to decide how to respond to an entirely new type of interaction, e.g., if the donee

simply refused to communicate with the donor for several months.



2008] COMMODIFICATION AND COLLABORATION 35

So interpreted, the moderate thesis sounds plausible, at least initially.

Friendships and family relationships are indeed complex, and the moral

implications of various possible interactions are quite fact-dependent. However,

it does not follow that we should provide no remedy at all for the breach of a
simple donative promise. It may mean that an action for breach of such a
promise must be subject to at least one defense that is expressed as a standard

rather than a rule, but there is nothing remarkable or unusual about that.
160

Contract law as a whole is full of norms expressed as standards rather than rules.

One could borrow language from the unforeseen circumstances exception to the
pre-existing duty rule and refer to "circumstances not anticipated by the parties

at the time of the promise that make performance substantially more onerous."
161

Alternatively, if it is not deemed necessary that the circumstances be unforeseen,
one could use language like the "material adverse change of circumstances"

clauses that appears in acquisition agreements. At an even greater level of

generality, one could use language analogous to that of section 90 and authorize

a court to refuse enforcement or limit remedies "as justice requires."
162

I do not

now wish to argue that any one of these formulae could capture the range of
excuses to which simple donative promises should be subject. I am more
inclined to believe that a group of them would be required. My present point,
however, is that our inability to predict comprehensively and in advance all the

facts that might conceivably generate an excuse is not an insuperable obstacle to

an enforcement regime with appropriate defenses. List-making is not the only

form of lawmaking.

In the end, therefore, Professor Eisenberg's second substantive reason for

refusing to enforce donative promises proves to be inadequate. If he is relying

on the strong thesis as his premise, the premise itself is doubtful. If he is relying

on the moderate thesis, the premise is more plausible, but it does not entail his
conclusion that donative promises should not be enforced. I turn now to the very
different argument in support of that conclusion developed by Professor

Markovits.

160. Indeed, the mother of all standards, the unconscionability defense to a contract, is

responsive to precisely the same sort ofproblem. It is impossible to specify in advance all the forms

that bargaining unfairness and economic overreaching may take, at least if we try to use the simple,

empirically verifiable descriptions characteristic of rules. Nevertheless, leaving such forms of bad

conduct entirely unregulated is not our only option. The use of an admittedly vague standard

permits judicial oversight with sufficient flexibility to permit legal evolution.

161. Cf. Restatement (Second) ofContracts : Modification ofExecutory Contract

§ 89(a) (1981) ("A promise modifying a duty under a contract not fully performed on either side

is binding (a) if the modification is fair and equitable in view of circumstances not anticipated by

the parties when the contract was made.").

162. Restatement (Second) of Contracts: Promise Reasonably Inducing Action or

Forbearance § 90(1) (1981) ("The remedy granted for breach may be limited as justice

requires.").



36 INDIANA LAW REVIEW [Vol. 41:9

II. Professor Markovits on Collaboration

A. Professor Markovits 's Argument

1. The Scope ofthe Argument.—In contrast to Professor Eisenberg' s article,
the question whether simple, affective donative promises should be enforced is

not the principal focus of Professor Markovits' s article. Indeed, one should

observe at the outset that Professor Markovits' s article is a remarkably ambitious

one. It purports to be a moral and philosophical theory ofpromising that not only

accounts for the commonly experienced features of promising in practice, but
also explains the moral desirability of promising as an institution and the moral

obligation to keep particular promises.

The theory traces its roots to Kant's third formulation of the categorical
imperative, but it does not purport to be utterly faithful to, or a simple exegesis

of, Kant.
163

Rather, it purports to be a further articulation of, and an advancement

beyond, strictly Kantian ideals.
164

Along the way, Professor Markovits claims to
resolve traditional philosophical puzzles concerning promising, including: the

reasons why we do not have a duty to make any particular promise, 165 the reasons
why keeping promises appears to be a stronger obligation than making them in
the first place,

166 why an act of will should be sufficient to generate a moral
obligation,

167 why promises change the logical structure of our practical
reasoning,

168
and why a promise should bind the promisor morally even in the

absence of reliance by the promisee.
169 He then refines the general moral theory

of contract to articulate the more particular form of moral ideal

—

collaboration—that explains the desirability of contracting and the obligation to
perform one's contracts.

170
This is all very heady stuff, and the project is carried

out at a fairly high level of abstraction. It is only toward the end of the article

that Professor Markovits, in an effort to show that his theory fits well with the
institution of contract he is trying to explain and justify, contends that it explains

and justifies the traditional doctrine of consideration.
171

My focus in this Article on Professor Markovits' s contentions concerning the
doctrine of consideration is thus a concentration on matters that, for him, are

undoubtedly subsidiary points. Moreover, his defense of the doctrine of

consideration is engaged and disputed here without mounting a broad refutation

of his overall account of promising and contract. Indeed, a thorough evaluation

of his philosophical model of promising and contract would require an article of

163. Markovits, supra note 2, at 1424.

164. Id.

165. Id. at 1435-38.

166. Id. at 1438-41.

167. Id. at 1442-46.

168. Id. at 1440-41.

169. Id. at 1439, 1443-46.

170. Id. at 1446-74.

171. Id. at 1474-91.



2008] COMMODIFICATION AND COLLABORATION 37

far greater length than I am prepared to write and far more philosophical training
and experience than I have. Accordingly, although I have (and will occasionally

articulate) some reservations about it, I propose to assume that his general theory
of promising is largely accurate and illuminating. What I propose to dispute is
that the traditional requirement of consideration follows from that theory.

2. Promissory Obligation.—It is necessary to begin by articulating in more
detail Professor Markovits's theory of the moral obligation that arises from a

promise. The foundation of the theory is Kant' s fundamental moral principle, the
categorical imperative, and, in particular, the version of the principle called the

"Formula of the End in Itself." 172 That principle is, '"Act in such a way that you
always treat humanity, whether in your own person or in the person of any other,
never simply as a means, but always at the same time as an end.'"

173 The
principle is, in Professor Markovits's view, not one command, but two.

174
First,

one should never use persons merely as a means; second, one should always treat

them as ends in themselves.
175 He asserts this pair of commands expresses a

moral ideal of respectful community that ultimately will prove to be the moral

foundation for promising and contract.
176

Initially, the dual commands embodied in the "Formula of the End Itself
explain why it is wrong to lie and, in particular, why it is wrong to engage in the
form of promise-breaking that is a subset of lying.

177 The false promise, as
opposed to the honest but broken one, is a promise that the promisor never

intends to keep, even at the moment it is made. For example, suppose a person
borrows money that he knows he will be unable to repay (and intends never to
repay), but promises to repay within a fixed span of time.

178 The lying promise
violates the first command because it treats the promisee as a mere means. 179 The
promisee cannot accept the promisor's ends, as she has not been invited to, but

has instead been deliberately kept in the dark and manipulated.
180

She is an

object of the promisor's plan—not a participant. 181 However, even if the
promisee is not deceived, and is both aware of the promisor's deceptive intent

and quite willing to give him the money outright, the promisor has failed to treat

172. Id. at 1424.

173. Id. (quoting ImmanuelKant, Groundworkofthe Metaphysic ofMorals 429 (H.J.

Paton trans., Harper & Row 1964) (1785)).
174. Id.

175. Id. The first command prohibits actions according to "maxims" that those affected could

not accept and thus treating them merely as things, not as persons. Id. at 1425. The second

command prohibits actions in pursuit of ends that the persons affected could not share. Id. The

relation between persons that results from violation of the "Formula of the End in Itself is

estrangement, the opposite of respectful community. Id. at 1426.

176. Id. at 1420, 1424.

177. Id. at 1424-28.

178. Id. at 1426.

179. Id. at 1427.

180. Id.

181. Id.



38 INDIANA LAW REVIEW [Vol. 41:9

the promisee as an end.
182 The promisee may have avoided being treated merely

as a means because she has not been deceived.
183

Nevertheless, even if her end

and that of the promisor coincide, they are not shared?
84
Her acquiescence in his

receipt and retention of the money does not generate a relation of respectful
community.

185 The lie prevents the sharing of ends that a community requires. 186

It is probably safe to assume, however, that most ordinary promise-breaking

involves breaking honest promises, in the sense that the breaching promisor

honestly intended to keep the promise when he made it. Further articulation of
the theory of promising is therefore necessary, and Professor Markovits supplies

it. The honest promisor who breaches does not deceive or coerce the promisee
and thus does not treat her merely as a means to his own ends. 187 Such a
promisor does, however, violate the second command of the "Formula of the End
in Itself."

188
Specifically, he fails to treat the promisee as an end in herself by

pursuing an end she cannot share.
189 The result is one of several possible forms

of estrangement.
190

Why is breaking an honestly-made promise a failure to treat the promisee as
an end in herself? The answer begins with a more complete analysis of the
notion of promise-ra<2&wg.

191 When a person makes a promise, he adopts an end
or ends that are specified in the content of the promise.

192
Those ends are

available to the promisee, and she normally adopts them as well.
193

However,

further features of the promise make the overlap of ends more than merely
coincidental.

194
The promisor also intends to "entrench" the ends specified by

the promise and refuse to defect from the ends unless released from them by the

182. Id.

183. Id.

184. Id.

185. Id. at 1427-28.

186. Id. at 1428. In a further elaboration of the ideal of respectful community generated by

the "Formula ofthe End in Itself," Professor Markovits later specifies two components of the ideal.

"First, the basis of respectful community must be free," in the sense that the parties to the

community must enter it willingly. Id. at 1429. This is not possible if one party manipulates the

other through deception or coercion, which amounts to treating the other as a means. Id. at 1429-

30. Treating another as a means thus generates one form of estrangement. Id. "Second, the basis

of respectful community must be shared," in the sense that the participants must pursue ends they

adopt together. Id. at 1429. A second form of estrangement thus arises if one pursues ends in
which the other, though implicated in them, cannot participate. Id. at 1429-30.

187. Id. at 1431.

188. Id.

189. Id.

190. Id.

191. Id. at 1431-33.

192. Mat 1431-32.
193. Id. at 1431.

194. Id. at 1432.



2008] COMMODMCATION AND COLLABORATION 39

promisee.
195 The promisor gives the promisee authority over his ends and

subordinates his own ends to her will. 196 The sharing of ends in this very strong
sense creates the relation of respectful community between promisor and
promisee.

197

If the promisor then breaks the honest promise, he abandons the ends

specified by the promise and adopts ends that, with respect to the promised

performance, are inconsistent with those of the promisee.
198

In so doing, the

promisor does something far worse than merely abandoning the community the
promise had created and returning to the status of a stranger to the promisee.

199

The breach of promise, by its adoption of ends contradictory to those of the
(formerly shared) ends of the promise, is a betrayal of the community initially
created by the promise.

200
It puts the promisor and promisee in a relationship of

estrangement or enmity.
201

Such estrangement is the evil that makes breaking

even an honestly-made promise wrong.
202

3. Collaboration and Contractual Obligation.—The justification of the
institution of contract, and for keeping the contracts one makes, takes the analysis

a step further in specificity. Contracts are, among other things, a subset of the
broader category of promises,

203
and so we may expect Professor Markovits to

find the moral foundation for contract in the ideal of respectful community

entailed by the "Formula of the End in Itself." He fulfills that expectation by
defining a particular kind of respectful community he calls "collaboration" and
arguing that this more particular ideal explains andjustifies contract as a specific
variety of promising.

204

Like many of the concepts Professor Markovits uses, the notion of
collaboration is a complex one, and he constructs it in stages. Initially,

collaboration is a form of "joint intentional activity."
205 To describe coordinated

activity as "joint intentional activity" entails at least the following elements:

(a) the parties intend to engage in coordinated action;
206

195. Id.

196. Id.

197. Id.

198. Id. at 1433.

199. Id.

200. Id.

201. Id.

202. Id.

203. Id. at 1448.

204. Id. at 1448-51.

205. Id. at 1452-56. Professor Markovits borrows the term and much of its analysis from

philosopher Michael Bratman. Id. at 1451 n.70 (citing Michael E. Bratman, Shared

Cooperative Activity in Faces of Intention: Selected Essays on Intention and Agency

93 (1999)).

206. Id. at 1452. Coordinated action, as opposed to merely correlated action, requires that the

actions in question not be coincidental, but rather that each party's actions '"have a reference to'"

the other's. Id. (quoting David Hume, OfMorals, in A Treatise of Human Nature 455, 490



40 INDIANA LAW REVIEW [Vol. 41:9

(b) the parties "specifically intend to perform the actions according to

meshing subplans";
207

(c) the parties intend to act, and actually act, in mutually responsive

ways, so that each participant adjusts his or her subplans and actions

to those of the others;
208

and

(d) the intentions reflected in (a)-(c) "be common knowledge among the
participants."

209

The performance of a contract, according to Professor Markovits,
characteristically involves just such joint intentional activity,

210
although an

explanation of the institution of contract in terms of joint intentional activity

alone is essentially incomplete.
211

Joint intentional activity requires only that

each participant have intentions in favor of the activity, not intentions in favor of

the other participants.
212

In order to obtain a satisfactory account of contract, it

seems we must add the element of promise and the implications of the earlier
analysis of that practice.

213
Specifically, a contractual promisor, in addition to

having the intentions just mentioned, intends not to abandon the promised

performance (and so defect from the joint intentional activity) unless released by

the promisee.
214

In harboring this intent not to be the first to defect, the promisor

grants the promisee authority over the promisor' s intentions and will (or, looking

at it another way, subordinates his own ends to those of the promisee).215 The
promisor thus treats the promisee as an end in herself, and this creates a morally

(Oxford Univ. Press 2d ed. 1978) (1739-40)).

207. Id. at 1453.

208. Id. at 1453-54. Mutually responsive activity is distinguished from prepackaged

coordination, which involves joint planning but separate action. Id. The latter can succeed, in the

absence of mutual responsiveness, only if the meshing subplans are complete at the outset and every

possible detail is specified and every possible contingency is anticipated. Id. at 1454.

209. Id. at 1455. This means that the intentions of the participants are interlocking. Id. Each

agent treats the "intentions of the other ... as end-providing for herself," in that each intends that

the relevant intentions of the other succeed. Id. (quoting Bratman, supra note 205, at 93).

However, joint intentional activity need not contain the further elements necessary for "shared

cooperative activity." Id. The latter requires that each participant have the additional intention that,

in at least one circumstance in which one participant requires help to perform the joint task, the

other participant is willing to help without the first participant offering any further inducement for

the requisite assistance. Id.

210. Id. at 1456-57. Despite this claim, Professor Markovits emphasizes that parties to

contracts need not be committed to shared cooperative activity, i.e., to mutual uncompensated

support. Id. at 1457. Each party to a contract commits not to be the first to defect from the joint

intentional activity. Id. at 1458. However, though he may do so, he need not commit to

compensating for the other party's shortcomings. Id. at 1457-58.

211. Id. at 1458.

212. Id. at 1460.

213. Id. at 1458-63.

214. Id. at 1460.

215. Mat 1460-61.



2008] COMMODMCATION AND COLLABORATION 4

1

valuable relationship of respectful community.
216

In contrast, a promisor's

breach of the contract treats the promisee as something other than an end in

herself, destroys the community, and results in estrangement.
217

Professor Markovits calls the relationship of respectful community
characteristic of contract "collaboration," and he is careful to distinguish it from

the more supportive relationship of "cooperation."
218 The latter relationship

implies patterns of "reciprocal concern" and "mutual aid" that may be present in
contractual relationships, but are by no means essential to contract.

219 On the
contrary, the parties to contracts may pursue their own interests quite selfishly,
even in the context of the contract.

220
"Collaboration" requires only that the

parties each agree not to be the first to defect from the joint project defined by

the terms of the contract.
221

Nevertheless, even this thinner relationship of

collaboration is a form of respectful community,
222

and both making and keeping

one's contracts are justified by appeal to it.

4. Consideration.—Now that the central features of Professor Markovits'

s

moral theory of contract have been outlined, the remaining expository task is to

explain his view that this theory supports certain features of the traditional

doctrine of consideration. In his view, the central task for a contract theorist

seeking to explain the doctrine of consideration is to explain two aspects of it that

appear to be in tension.
223

Contract law traditionally requires, as a condition of

enforcement, the fact of bargain—i.e., that each party to the contract provides or
promises something in exchange for the other's promise or performance and that

each side's promise or performance induces the other's.
224

Yet contract law is

largely indifferent to the fairness or adequacy of the bargain.
225

In effect, the

scholar's task is to explain why the fact of bargain is so important that the law
insists on it, while the specific terms and fairness of the bargain are so

unimportant that they may be ignored in all but exceptional cases.
Professor Markovits contends that his analysis of contract in terms of the

collaborative ideal explains and justifies both aspects of the doctrine of

consideration.
226

Actual bargains are illustrations ofjoint intentional activity that

216. Id. at 1463.

217. Id.

218. Id. at 1460-62.

219. Id. at 1462.

220. Id. at 146 1 . Professor Markovits recognizes that there are forms ofcontracts that generate

even stronger bonds of community, and he gives as examples contracts that create fiduciary duties

among partners or joint venturers, as well as "relational contracts" among regular suppliers. Id. at

1449-50 & n.68 (citing Ian R. Macneil, The New Social Contract 10 (1980)). However, he
insists that the discrete self-interested contract is the conceptually primary one. Id.

221. Id. at 1460-61.

222. Id. at 1461.

223. Id. at 1477.

224. Id. at 1477-78.

225. Id.

226. Id. at 1481-87.



42 INDIANA LAW REVIEW [Vol. 41:9

involve collaboration as a form of respectful community.
227

In the ordinary

bargain, each party, by virtue of his own promise, subjects his own intentions to
that of the other, grants her authority over them, and thus treats her as an end in

herself.
228 A bargain is thus an instance of the establishment of a morally

valuable relationship ofrespectful community between the parties.
229

Moreover,

because collaboration is a "thinner" ideal than "cooperation," the bargain form
alone creates this form of community, as long as it is a real bargain.

230 What the
parties to a bargain promise each other is (or may be) a matter of indifference.
Collaboration arises from the mere fact that each grants the other authority over

her ends as specified in the respective promises.
231 The nature of those ends and

the content of each party's promise are irrelevant, in the sense that we may
conclude a valuable relationship has arisen from the fact of bargain, without

knowing what the terms of the bargain are.
232

B. Criticism

1. Refining the Scope ofthe Defense.—If one accepts Professor Markovits'

s

general theory of the value of collaboration, as well as the premise (implicit

throughout his article) that the moral value of a relationship created by promising

(or, for that matter, some other action) could justify the imposition of legal
sanctions, then one might conclude that he has provided somejustification for the
doctrine of consideration—up to a point. It should be recalled that the "doctrine"
of consideration is not one rule, but a cluster of several related rules.

233
If one

227. Id. at 1482-83.

228. Mat 1483.
229. Id. at 1482.

230. Mat 1483.
231. Id.

232. At this point, a fairly obvious objection comes to mind. Everyone knows that there are

a lot of morally bad bargains in the world. Some of them are bad because the assent of one party

is obtained by fraud, duress, or some other improper means. These pose no difficulty for Professor

Markovits's theory, as they do not even generate collaborative relationships, in his sense. A person
who obtains the assent of another to a bargain through force or fraud not only fails to treat the other

as an end in herself, but actually uses her as a mere means. There are, however, other bad bargains

that do not fall into this category. The mutual promises of a group of bank robbers or between a

drug dealer and his own supplier form genuine bargains, but the transactions in question are

universally regarded as morally vile. The total independence of the valuable relationship

(collaboration) from the substantive terms of a bargain may thus be doubted. One assumes that

Professor Markovits could respond to this objection by agreeing that collaboration arises in such

cases, but denying that collaboration is the only morally relevant feature of the transaction. He

never asserts that collaboration is the only relevant moral value, and it is thus open to him to

conclude that, in such transactions, other moral values outweigh whatever minimal value the

collaborative relationship between robbers or drug dealers may have.

233. See Wessman, Gatekeeper I, supra note 3, at 49-50; Wessman, Gatekeeper II, supra note

3, at 713-14.



2008] COMMODMCATION AND COLLABORATION 43

accepts Markovits's premises, he has so far justified, at most, two of them: (a)

the rule that the fact of bargain is prima facie a sufficient reason to enforce the

constituent promises of the bargain; and (b) the rule that, absent exceptional

circumstances, the courts do not inquire into the adequacy of consideration (i.e.,

the underlying fairness of the bargain). However, what has been said so far does

not justify the traditional rule in which I am most interested, the rule that the fact
of bargain (or some substitute for it) is a necessary condition of promissory
enforcement, i.e., the rule that gratuitous promises should not be enforced. In

other words, showing that the ideal of collaboration makes bargains valuable

enough to merit enforcement does not establish that only bargains are valuable

enough to justify legal sanctions.

It is clear, however, that Professor Markovits accepts at least a weak version
of the latter claim, although like Professor Eisenberg, he does not wish to defend

the claim that all promises traditionally classified as gratuitous should be

unenforceable. Requirements, output, and best efforts contracts, for example,

have sometimes run afoul of the consideration requirement, and one-sided

modifications of bargains have often run afoul of the pre-existing duty rule.
234

Yet Professor Markovits regards them as promises that can support collaborative

relations and so regards them as proper exceptions to the requirement of
consideration.

235 The bargain form is thus a proxy for the presence of
collaboration, although an imperfect one.

236 He also suggests that promises
enforceable on the basis of promissory estoppel might be similarly justified,

although he insists that such promises be classified as noncontractual

collaborative arrangements.
237

Although the contours of the consideration requirement he wishes to defend

are not entirely clear, it appears that Professor Markovits's primary candidate for

the quintessential^ unenforceable promise is what Professor Eisenberg would

call the simple donative promise, although Professor Markovits refers at various

times to "personal" promises, promises motivated by "benevolence," and

"donative" promises.
238 Why should such promises be denied enforcement? The

general answer seems to be that such promises involve passive promisees, and

passive promisees make collaboration impossible.239

2. The Problem of the Passive Promisee.—At this point, however, the
argument becomes a bit murky. There are two obvious questions in need of
answers: (a) What precisely is a "passive promisee"? and (b) Why does the
presence of a passive promisee destroy any prospect for collaboration? The
answers to these questions appear to vary somewhat at different points in
Professor Markovits's paper. At one point, he describes the passive promisee as

234. Markovits, supra note 2, at 1488-89.

235. Id.

236. Id. at 1488, 1491.

237. Id. at 1488 n. 168.

238. Id. at 1486-87, 1490.

239. Id.



44 INDIANA LAW REVIEW [Vol. 41:9

"a promisee who simply waits for the promisor unilaterally to make her gift."240

At another, he describes the passive promisee as one "who does not exercise her
ownership of the promissory obligation, who remains disengaged from the
promise and does not interfere in the promised performance, either to command
or to release it."

241
Collaboration requires that a promisor intend to give the

promisee authority over his own intentions and ends and, apparently, that the
promisee exercise that authority.

242
Absent the promisee's exercise of the

authority granted by the promisor, not only has the promisee not "engaged" the
promisor, but the promisor cannot "engage" the promisee and treat her as an end

in herself.
243

Initially, it is not entirely clear why mere inaction by the promisee should
prevent a promisor from treating the promisee as an end in herself.

244
Whatever

the explanation, however, one's most immediate intuitive reaction is that

Professor Markovits's "passive promisees" are so utterly passive that there

cannot be very many of them in the real world. Calling them "catatonic
promisees" might have been more accurate. Indeed, it appears that all a donative
promisee must do to avoid becoming a passive promisee is exhort the promisor

to perform and, if the promisor appears ready to renege, insist firmly on

performance.
245

If so, Professor Markovits's defense of the requirement of

consideration reduces to something of a caricature. It is as if we are being told
that a donative promise should not be enforced—unless of course, the promisee
wants it enforced. The promisee's exhortation or insistence prevents her from
being passive, establishes collaboration, and justifies enforcement. To put it
another way, enforcement of donative promises would be justified precisely in

all those cases in which it was sought, and the "requirement" of consideration
would only be a true requirement if the donative promisee did not object to it.

240. Id. at 1489-90.

241. Id. at 1486.

242. This seems implicit in Professor Markovits's reference, at one point, to the "promisee's

management of the promise." Id.

243. Id.

244. I will simply note in passing that I cannot see how Professor Markovits' s last conclusion

follows from his earlier, more general theoretical account of the value of promising and keeping

one's promises. The earlier account suggests that the promisor treats the promisee as an end in

herself simply by keeping the promise made to her. While it is perhaps intelligible why an utterly

passive promisee may fail to treat the promisor as an end in herself, that does not explain why or

how she also keeps the promisor from treating the promisee herself as an end. How a passive
promisee prevents the promisor from treating the passive promisee as an end in herselfthus remains

mysterious. However, because I find this notion of a passive promisee so odd, I do not dwell on

this point.

245. This interpretation ofwhat it means to be, or avoid being, a passive promisee is suggested

by Professor Markovits's characterization of the passive promisee as one who neither "commands

nor releases" the promised performance, and by his claim that bargains are distinguished from

"passive" transactions by the fact that each party to a bargain intends to "actively insist" on

performance when it is due. Markovits, supra note 2, at 1486-87.



2008] COMMODMCATION AND COLLABORATION 45

Since it is doubtful that Professor Markovits intended to defend such a pale

ghost of the traditional common law requirement of consideration, one must
assume that he believes that a promisee, in order to avoid the status of passive

promisee, must do something more than simply exhort or insist upon
performance. Indeed, this is suggested by his insistence that the promisee' s mere

acceptance of a promise cannot be sufficient to establish collaboration.
246 One

may ask, however, what else is required, and why does its absence preclude
collaboration (in the morally valuable sense)? Professor Markovits does not, as

far as I can tell, provide an answer.

3. A Potential Reconstruction: Joint Intentional Activity.—One may
construct a possible answer out of materials he provides, although I hesitate to

attribute it to him, as it ultimately begs the question. If one returns to one of the

building blocks of Professor Markovits' s account of contract—specifically the
notion ofjoint intentional activity—one is struck by the examples of such activity
he uses. He refers specifically to a couple taking a walk together, two people
rowing a boat together, and two musicians singing a duet together,

247
and the last

of these examples is the one that recurs the most often.
248 They are all examples

in which both of the participants in ajoint endeavor are "active" in a strong sense

of the word. Each participant must exert physical effort in a performance
involving physical motion. Perhaps Professor Markovits intends to confine the

notion of "joint intentional activity" to these sorts of active examples and to

define "contract" in terms of agreements for joint intentional activity in this

restricted sense.
249

If one adopts such a set of definitions, of course, a

requirement of bargained consideration seems to be a logical consequence. Any
agreement in which two people agree that each of them will render this kind of
active physical performance will qualify as an agreement for an exchange of

performances, and we have thus built the notion of exchange into the very
definition of "contract" (via the definition of "joint intentional activity").

Donative promises will be excluded by definition, and only exchange promises

can possibly qualify.
250

However, by simply adopting such definitions arbitrarily, we have not really
accomplished anything or illuminated theoretical questions of contract law. The
decision to define "joint intentional activity" in terms of dual active physical

246. Id. at 1487 n. 167.

247. Id. at 1452.

248. Id. at 1452-55.

249. The possibility that Professor Markovits may be adopting this strategy (and I emphasize

the word "may") is suggested by his statement: "The special relation whose value underlies the

morality of contract therefore cannot possibly be constructed out of a contractual promisor's

participation standing alone, but must instead look to the promisee's activities as well." Id. at 1487

(emphasis added).

250. Indeed, on the plausible assumption that Professor Markovits' s definition of "joint

intentional activity" implies that the activities and intentions ofeach party induce those of the other,

only bargain promises will qualify for enforcement. Exchange and mutual inducement are the

defining features of a bargain.



46 INDIANA LAW REVIEW [Vol. 41:9

performances seems arbitrary. One suspects that the average speaker of the
English language would regard two people watching television together as

engaged in joint intentional activity, as long as it was not accidental that they did

so. The same is presumably true of one person sitting and listening to the other
play the tuba.

Moreover, even if one decides to adopt such a strong or "activist" definition

of "joint intentional activity" for general purposes, it seems equally arbitrary (and

question-begging) to decide at the outset that contract is to be defined as "joint

intentional activity" in this rather strong sense. To be sure, one can thereby
define contract in a way that entails a requirement of consideration and
disqualifies donative promises from enforcement. But arriving at the latter

conclusion by smuggling it in with a restrictive set of definitions that itself has

nothing obvious or independent to recommend it would seem to beg the
normative question of whether donative promises should be enforced. If we
simply define contract as bargain, the more interesting normative question just

reappears as the question of why promissory liability should be confined to
"contract" in the arbitrarily defined sense. Conquest by definition does not

amount to justification.
251

25 1 . Indeed, there are a number of features of Professor Markovits' s article that suggest he is

ultimately constructing a technical, philosophical model of contract that, whatever its other merits,

is far from coextensive with the notion of contract employed by most practitioners and scholars of

contract law. For example, his account of promising and contract is founded on the morality of

relations between individuals, and he concedes that it does not apply to contracts among business

organizations (or between individuals and such organizations) "in any straightforward way."

Markovits, supra note 2, at 1464. However, he insists that contracts formed by promises between

individuals constitute the "essence" or "conceptual core" of contract, and he appears to accept the

conclusion that contracts between business organizations must have some other form of

justification. Id. at 1464-67. Contracts between corporations, however frequent they may be, thus

become derivative cases. Similarly, although Professor Markovits clearly recognizes the existence

(and perhaps the frequency) of relational contracts, they are likewise removed from contract's

conceptual core, which consists of the discrete, self-interested exchange. Id. at 1449-50. Finally,

although he appears to have no quarrel with enforcing promises on the basis ofpromissory estoppel,

he suggests reliance-based liability must be understood as a form of noncontractual obligation. Id.

at 1488 n.168. Apparently, the essence of contract is the proverbial one-time sale of gasoline to a

through traveler on the New Jersey Turnpike. It is, of course, open to Professor Markovits to define

"contract," for purposes of his article, in any way he likes. However, three points must be

emphasized. First, the more his notion of "contract" becomes a technical term by excluding or

marginalizing cases that contract lawyers and scholars regard as rather ordinary contracts, the less

satisfactory it becomes as a general theoretical explanation of contract. Second, to the extent his

use of the word "contract" is a technical one, it prompts the question of why liability on promises

should be confined to cases encompassed by his technical sense of "contract." Third, even if one

accepts his view that the discrete, self-interested exchange is the "conceptual core" of contract, in

the sense that it is the simplest or "plain vanilla" example of a contract, it does not follow that

promise-based liability, or even contract liability proper, should be exhausted by or confined to the

plain vanilla cases. There are a lot more flavors than vanilla. Some of them may even be better.



2008] COMMODMCATION AND COLLABORATION 47

4. A Closer Look at Collaboration and Benevolence: The Moral Value of
Donative Promises.—

a. The value of benevolence.—Thus, even if one assumes that Professor
Markovits's collaborative ideal provides a satisfactory explanation and

justification for enforcing bargain promises, he has not provided either a

satisfactory elaboration of what it means to be a "passive promisee" or an
explanation for the claim that donative promisors and promisees cannot (or do

not) collaborate. He has therefore not yet explained why enforcement should be
granted in the case of bargain promises and withheld in the case of donative

promises.

Indeed, at one point, he seems to concede that donative promisors and

promisees can and do collaborate, at least sometimes.
252

Specifically, in the case

of "personal promises,"
253

the promisor is motivated to promote the promisee's

interests, and "this benevolence may . . . underwrite the respectful relation upon
which promissory morality depends."

254 The "promisee's interests may assert
themselves even without the promisee's active participation," as the promisor's

benevolence operates as "a stand in for the promisee's management of the
promise."

255 The content of the concept of benevolence employed at this point
is not articulated in any detail,

256
but it appears that a benevolent promisor, by

making and keeping a promise, either engages in actual collaboration with the

promisee or else creates some equally valuable form of respectful community.257

b. The argument based on indifference to motive.—Does it follow that some
or all "personal promises" should be enforced? Professor Markovits never quite

says so. He does suggest that the modern trend toward enforcement of charitable
subscriptions and marriage settlements, even without proof of consideration or

reliance,
258 may be accommodated to his collaborative view of contract by

reading into the law a presumption that charitable subscriptions are benevolently

motivated.
259 He regards such a presumption, however, as "ideological and

252. See id. at 1486.

253. Professor Markovits does not define the term "personal promise," but it is probably safe

to assume he intends it to refer to promises between family members, intimates, friends, or other

close associates.

254. Markovits, supra note 2, at 1486.

255. Id.

256. This is not intended as a criticism of Professor Markovits. The lack of detail is deliberate

(presumably because benevolent promises are only of secondary interest to him), and he suggests

that an account of personal promises based on benevolence could be developed by articulating the

form of benevolence at issue and distinguishing it from false or depraved variations. Id. at 1486

n.166.

257. Id. at 1486.

258. Restatement (Second) of Contracts: Promise Reasonably Inducing Action or

Forbearance § 90(2) (1981).

259. Markovits, supra note 2, at 1490 n.173. My own views on charitable subscriptions are
closer to Professor Eisenberg's than Professor Markovits's. In my view, the reasons such promises
should be enforced have less to do with the benevolence that may (or may not) motivate them than



48 INDIANA LAW REVIEW [Vol. 41:9

absurd,"
260

and he regards the suspicion with which the common law views
donative promises as justified.

261
Moreover, he suggests, at one point, the fact

that benevolent promises may generate collaboration will not support
enforcement of promises generally "[b]ecause the law declines to inquire into a

promisor's motives."
262

The last suggestion, in my view, is a non sequitur, for two reasons. First, in
referring to the law's alleged indifference to the promisor's motives, Professor

Markovits is presumably appealing to part of his previous description of the

peculiarity of the requirement of consideration. The doctrine of consideration
requires that each party to a contract manifest an intention to induce, and be

induced by, the other party's return promise or performance.
263 The reference to

inducement might tempt us to conclude that consideration doctrine not only

concerns motivation, but makes it central. However, following Holmes,
Professor Markovits identifies the requisite inducement as '"reciprocal

conventional inducement.'"
264 The law focuses on the manifestation of intention

to induce or be induced and does not require that the bargained-for consideration

be the sole, actual motive for the promise at issue.
265 The distinction is a

familiar, if somewhat slippery, one. However, if it is tenable to draw a
distinction between actual and manifested motive or intention in the case of the

doctrine of consideration, there is no reason the same distinction could not be
drawn in the case of whatever class of donative promises we choose to enforce.
Assuming there are normative reasons to enforce donative promises (like the
presence of benevolence), we could enforce promises that reflect a manifested
intention of benevolence, and spare the courts the evidentiary burden of

ascertaining the promisor's "true" motive, just as we do in the case of bargains.
More fundamentally, however, even if it is true that indifference to motive

is one aspect of the doctrine of consideration, that provides no support for

refusing to enforce benevolent promises if (a) benevolent promises generate

collaboration (or some equivalent form of respectful community); and (b) the
moral value of a relationship engendered by a promise is or may be a sufficient

the fact that, in the United States, much good (including much that is done by government in other

societies) is accomplished by charitable organizations. Moreover, even if it is not always or often

possible to prove specific reliance by a charity on an individual promise, charitable organizations

rely in a general way on the stream of income generated by pledges collectively.

260. Id.

261. Id. at 1489.

262. Id. at 1490 n. 173.

263. Id. at 1477 (citing Restatement (Second) of Contracts: Requirement of

Exchange; Types of Exchange § 71 (1981)); id. at 1483 (citing Restatement (Second) of

Contracts: Consideration as Motive or Inducing Cause § 81 cmt. a (1981)).

264. Id. at 1477 (emphasis added) (quoting OliverWendellHolmes, Jr., TheCommonLaw
293-94 (Dover Publications, Inc. 1991) (1881)).

265. Id. at 1477, 1483, 1490; see also Restatement (Second) of Contracts:

Consideration as Motive or Inducing Cause §81(1981).



2008] COMMODIFICATION AND COLLABORATION 49

reason to enforce it.
266 Whether the doctrine of consideration should continue to

pose an obstacle to the enforcement of donative promises is precisely what is at

issue. If propositions (a) and (b) are true, there is reason to enforce donative

promises, and the doctrine of consideration, including its apparent indifference

to motive, can be jettisoned if it gets in the way.

c. Benevolence, cooperation, and comparing distinct moral ideals in
deontological theory.—The last observation leads quite naturally to my most
fundamental objection to Professor Markovits' s claim that his Kantian account

of promising and contract vindicates the requirement of consideration, at least

insofar as the latter prohibits enforcing donative promises. Keeping the promises

one makes is, in his view, morally valuable because the promise-keeper treats the
promisee as an end in herself and thus enters a relationship of respectful

community with the promisee.
267

Moreover, the general account of promising

suggests that this is true even if the promissory relationship is one-sided, i.e., if

the promisee makes no return promise. Bargains, of course, are morally valuable
because they are reciprocal promissory arrangements in which each side treats

the other as an end and so creates the more specialized relationship ofcommunity
called "collaboration."

268 The obvious question, however, is why collaboration
is regarded as better than one-sided respectful community or as so much better
that legal sanctions should attach to the former, but not the latter?

269
In my view,

Professor Markovits never provides an answer to this question, and so never

provides ajustification for drawing the boundary of legal enforcement where the

doctrine of consideration does.

At this point, Professor Markovits (or the reader) might be tempted to

respond to my question as follows:

Are you stupid, or just confused? If two parties are collaborating in a

bargain relationship, each is treating the other as an end, as the

"Formula of the End in Itself requires. In the one-sided promissory
relationship characteristic of donative promises, only one party is

treating another as an end. The former is obviously better than the
latter, for the simple reason that two is a larger number than one.
Quod erat demonstrandum.

In spite of its intuitive appeal, however, it seems to me that this is precisely
the sort of argument that one pursuing the very ambitious project set out by

Professor Markovits may not make. Recall that Professor Markovits purports to
be providing a Kantian, deontological theory of promising and contract. He

266. Professor Markovits admits (a). Markovits, supra note 2, at 1486. He seems committed

to (b) by his justification of enforcing bargains by appeal to the value of collaboration. Id. at 1458-

63.

267. Id. at 1431-35.

268. Id. at 1458-63.

269. At least, the question is obvious to those of us who, in contrast to Professor Markovits,

are primarily interested in the implications of his theory for the requirement of consideration and

the enforcement of donative promises.



50 INDIANA LAW REVIEW [Vol. 41:9

disclaims any intent to base the moral or legal obligation to keep promises on

reliance, harm, or welfare.
270 He specifically adopts the view that promises

change our reasons for action in ways that may prevent the overall balance of
utility from being decisive in a particular instance.

271
For someone who starts

from such premises, comparative assessments of moral value cannot simply be

matters of "bean counting," as the argument of the previous paragraph suggests.

The question whether it is better that one party treat another as an end in herself,
or that two do so reciprocally, cannot be dismissed as nonsensical at the outset.

To illustrate the point, it might be helpful to consider an example. I think we
may all agree that Bill Gates has accomplished a great deal in his life thus far.
He amassed the world's greatest fortune largely by living in the "world of
contract." He created operating systems and software that generated massive
sales to hardware suppliers and the public at large.

272 He now also is rather
prominent in the "world of gift." He is giving away a lot of money (and/or
pledging to give it away).

273 Some of his pledges are promises to provide money
for research on and/or delivery of drugs and vaccines for the disease-ravaged

populations of third-world countries.
274

Assuming the resulting research proves
successful in the long run, we could ask whether it was and is morally better for
him to make (and keep) his bargain promises or his donative promises.

It is fairly obvious, in principle, how the classical utilitarians or their modern
cousins, the law and economics scholars, would go about answering the question.

The inquiry is essentially quantitative, at least theoretically. One would

270. He does not, of course, deny that considerations of reliance, harm, or utility can generate

moral or legal obligations. See Markovits, supra note 2, at 1419. He does, however, deny that such

considerations explain what is distinctive about promising in general and contracting in particular.

Id. at 1419-20.

271. Id. at 1440.

272. Bill's Billions: Microsoft's Dividend, ECONOMIST, July 24, 2004, at Leader; David

Gelernter, Software Strongman, TIME, Dec. 7, 1998, at 200; Microsoft: Peaks, Valleys and Vistas,

Economist, Jan. 20, 2007, at 2.

273. I am obviously ignoring the fact that much of Gates's wealth was generated by a legally

distinct entity (Microsoft, the corporation) and that many of "his" donations and donative promises

are actually those of an equally legally distinct foundation. I disregard the legally distinct entities

because I am reasonably confident he has actual control ofboth the corporation and the foundation,

and nothing much turns on it for present purposes.

274. Amanda Bower, Bill & Melinda Gates: Giving Money and Hope to the World, TIME
(SPECIAL ISSUE), May 8, 2006, at 63; Warren E. Buffet, Bill Gates: Billionaire Philanthropist,

Time, Apr. 26, 2004, at 60; Kerry Capell, GlaxoSmithKline: Getting AIDS Drugs to More Sick

People, Bus. Wk., Jan. 29, 2007, at 60; Celia W. Dugger, Gateses Give $47 Million to Bolster

CoordinatedAssaults on Diseases, N.Y. Times, Dec. 20, 2006, at A5 ; Gloria Galloway, Gates Joins

Canada in AIDS Fight: Microsoft Founder Kicks in $28-Million; Ottawa Donates $111 -Million

for Research, Globe & Mail (Can.), Feb. 2 1 , 2007, at A4; Daniel Gross, Giving ItAway, Then and
Now, N.Y. TIMES, July 2, 2006, § 3, at 4; Christopher Mason, World Briefing Americas: Canada:

Gateses Join in AIDS Vaccine Search, N.Y. Times, Feb. 2 1 , 2007, at A6; Peter Singer, What Should

a Billionaire Give—and What Should You?, N.Y. TIMES, Dec. 17, 2006, § 6 (Magazine), at 58.



2008] COMMODMCATION AND COLLABORATION 5

1

presumably total the benefits to both sides of each of Gates's myriad contracts,

as well as the external benefits to non-parties. The latter would, of course, be
quite substantial, as the advances reflected in the software Gates created and sold

made the personal computer widely available, and so affected nearly everyone's
life for the better—a little better in some cases, a lot better in others. On the
other side of the ledger, one would total the benefits produced by help in the form

of pledges and gifts of food, medicine, or other supplies to those desperately in

need of them. On the way to drawing the comparative conclusion, one would
have to solve some theoretical problems. One would need to determine whether
interpersonal comparisons of utility are really possible and how the relative
happiness of different individuals can be made commensurable. Once those
problems were solved, the calculation could prove quite interesting, as it seems

plausible to say that the Gates's bargains benefited a huge number of
people—although the benefits may have been small in most instances—while the
Gates' s donations benefited a smaller number ofpeople—but the benefits to each
were quite dramatic. In the end, however, the process of arriving at the

conclusion would amount to comparing the results oftwo extremely complicated
mathematical sums.

Such a process is most emphatically not the approach Professor Markovits

adopts in trying to explain and justify promising and contract in general or in

trying to resolve specific moral questions. He purports to justify the making and
keeping of promises and contracts in terms of the relationships between persons

that they create.
275

It is the moral character of those relationships that performs

the theoretical work for him, and the analysis appears to be inescapably
qualitative, not quantitative.

276 He thus may not regard it as axiomatic that
collaboration, in which each of two people treats the other as an end, is morally

better than the respectful community generated by making and keeping a
donative promise, in which only one party treats the other as an end.

Indeed, it is not at all obvious to me that he believes the latter proposition to
be true. In particular, two suggestions he makes, in somewhat different contexts,
indicate a certain degree of admiration for examples of self-sacrificing, generous,

benevolent, or "other-regarding" behavior. First, as noted above, he recognizes

a class of "personal" promises in which the benevolence of the promisor towards

the promisee overcomes the lack of any return promise on the part of the

promisee and permits the relation of collaboration to arise.
277

At least some
donative promises, therefore, are "just as good" as bargain promises.

Second, he specifically distinguishes collaboration from cooperation and

describes the latter as a "thicker" form of community.
278

Collaboration is

perfectly compatible with each party acting in primarily self-interested ways.

275. Markovits, supra note 2, at 1419-20.

276. The concepts to which he appeals in characterizing the moral value of the relationship

created by promises are notions such as "recognition," "respect," and "community." Id. at 1420,

1428-35. Such concepts appear to defy any sort of straightforward quantitative treatment.

277. Mat 1486.
278. Id. at 1457-58, 1461-63, 1483.



52 INDIANA LAW REVIEW [Vol. 41:9

Collaborative promisors need only treat each other as ends by committing not to

be the first to defect from the joint project defined by the promises. Within those

bounds, however, each may seek to extract maximum benefit from the other.
Those who are to be characterized as cooperative, on the other hand, must, in
addition, commit to at least some support of the other without new reciprocal
compensation—in effect, to engage in behavior that is, at least within the
microcosm of the community between them, donative. In characterizing
cooperation as a "thicker" form of community than collaboration, Professor
Markovits does not quite say that it is morally better, but it is tempting to draw

the conclusion that he believes it is. Benevolence thus seems to have its own
independent moral value, which should surprise no one.

It thus seems at least open to Professor Markovits to conclude, in response

to my hypothetical question, that Gates is more morally commendable for making
and keeping his donative promises than his bargain promises (though he is to be

congratulated for keeping both sets). Moreover, that is probably in accord with

the well-considered moral judgments of most people,
279

or at least those who do
not believe that morality is exhausted by the utilitarian calculus. There is

something morally appealing about one-sided generosity or benevolence that is

absent in collaboration for mutual benefit, commendable as the latter may be.
One is tempted to conclude, with Professor Eisenberg, that "the world of gift is
[indeed] a world of our better selves."

280
If that is the case, however, then it

would seem that the more generic relation of respectful community created by
making and keeping a donative promise is (or, at least, may be) as valuable as the
collaborative relation created by the mutual promises required by the doctrine of

consideration. For a theorist like Professor Markovits, for whom the foundation
of contract and promising generally is a moral one, it therefore seems impossible

to dismiss donative promises as unworthy of enforcement because they are not

(or are not always) instances of collaboration. Indeed, if values other than

collaboration, including "benevolence," "cooperation," or even "respectful

community" generically, are of a dignity equal to (or even greater than)

collaboration, they provide as much reason to enforce donative promises as
collaboration provides for bargain promises.

Conclusion

This Article has required a detailed examination of two rather complex

concepts, commodification and collaboration. Both are thoroughly normative.

To those who use the term, "commodification," it describes an evil that is, at
least sometimes, important to avoid. Why it is evil, the degree to which it infects
society, and the forms of it that must be avoided are all subjects of some dispute,

279. Like Professor Radin, I know of no ultimate way to test a theory such as that proposed

by Professor Markovits other than by spinning out its implications and testing them against our

considered moral judgments. See Radin, supra note 79, at 1904 n.208. Such a pragmatic approach

seems to me to be virtually inevitable in the community of legal scholars we have.

280. Eisenberg, Contract and Gift, supra note 1, at 849.



2008] COMMODIFICATION AND COLLABORATION 53

and I have not attempted to resolve those disputes. Rather, my effort in response
to Professor Eisenberg has been to show that no objectionable form of
commodification would result from the enforcement of simple, affective donative

promises.

Collaboration, on the other hand, is an ideal to which Professor Markovits

urges us to aspire. My effort in response to his use of the concept has been to
show that, even if he is correct that collaboration has some role in the
justification of contract, it does not support drawing the boundary ofenforcement

at the same point as the traditional doctrine of consideration.