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17 Edinburgh L. Rev. 1 (2013)

handle is hein.journals/edinlr17 and id is 1 raw text is: The Edinburgh Law Review 17.1 (2013): 1-21 Edinburgh University Press DOI: 10.3366/elr.2013.0136 0 Edinburgh Law Review Trust and the Contributors www.euppublishing.com/elr Contract as Promise: The Role of Promising in the Law of Contract. An Historical Account Warren Swain* A. INTRODUCTION B. PROMISING IN EARLY LEGAL SYSTEMS C. THE ROLE OF PROMISES IN EARLY MODERN EUROPEAN CONTRACT LAW D. EARLY ENGLISH LAW AND THE ROLE OF PROMISING E. PROMISING AND CONTRACT THEORY F. THE WILL THEORY OF CONTRACT AND THE MARGINALISATION OF PROMISES IN ANGLO-AMERICAN LAW G. THE TWENTIETH CENTURY AND BEYOND A. INTRODUCTION One of the most striking features of the law of obligations in Scotland is the way in which a promise seriously intended is sufficient to generate a binding obligation.' More than three hundred years ago Viscount Stair wrote that a promise is that which is simple and pure, and hath not implied as a condition, the acceptance of another.2 Stair explained that, Promises now are commonly held obligatory, the canon law having taken of the exception of the civil law, de nudo pacto. This was not some abstract proposition. The Court of Session Senior Lecturer in Law, T C Beirne School of Law, The University of Queensland. I am grateful to Professor James Devenney, University of Exeter, for his helpful suggestions on the modern English law. Any errors remain my own. 1 W D H Sellar, Promise, in K Reid and R Zimmermann (eds), A History of Private Law in Scotland (2000) 252; W McBryde, Promises in Scots law (1993) 42 ICLQ 48. 2 Stair, Inst 1.10.4. 3 Ibid. 1