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71 Vand. L. Rev. En Banc 1 (2018)

handle is hein.journals/valewenb71 and id is 1 raw text is: Commodified Promises and Contract Theory Brian H. Bix* IN TR O D U CTIO N ............................................................................ . . 1 I. THE THEORY OF COMMODIFICATION AND ITS APPLICATION ....................................................... 3 II. LIMITS OF COMMODIFICATION ........................................... 7 C O N CLU SIO N .............................................................................. . 9 INTRODUCTION In Contract as Commodified Promise,1 Erik Encarnacion offers a novel perspective on contract law, one that suggests that we evaluate contractual agreements in terms of commodification. For Encarnacion, contracts involve commodified promises in the sense that, in enforceable agreements, one is literally selling a promise: the promise of some future payment, good, or service, is being exchanged for some present or future payment, good, or service.2 Encarnacion puts forward this analysis as one that has elements of both an instrumental, commerce-based approach and a deontological, promissory approach.3 Encarnacion's ultimate position appears to be, in some ways, the same as that of Nathan Oman, as elaborated in his recent book, The Dignity of Commerce:4 the primary objective and justification for contract law is the protection and promotion of commercial activity.5 And like Oman, Encarnacion emphasizes the benefits of commercial activity beyond * Frederick W. Thomas Professor of Law and Philosophy, University of Minnesota. 1. Eric Encarnacion, Contract as Commodified Promise, 71 VAND. L. REV. 61 (2017). 2. See id. at 75-76. 3. See, e.g., id. at 117-18. 4. NATHAN B. OMAN, THE DIGNITY OF COMMERCE (2016). 5. See, e.g., Encarnacion, supra note 1, at 98 (describing the author's approach as one according to which contract law first and foremost aims to facilitate commerce). 1