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13 LEG 1 (2007)

handle is hein.journals/legthory13 and id is 1 raw text is: Legal Theory, 13 (2007), 1-22. Printed in the United States ofAmerica Published by Cambridge University Press 0361-6843/07 $15.00 +00 DOI 10.1017.S1352325207070012 TWO THEORIES OF AGREEMENT Oliver Black King's College London, Linklaters Philosophers have been attracted by the theory that an agreement consists of under- takings by the parties. But the theory faces objections from three sides: unconditional undertakings by both parties are insufficient for an agreement; if the parties give in- terconditional undertakings, both comply if neither does anything; and, if one party gives an unconditional undertaking and the other a conditional one, a condition of interdependence is breached. The options are to live with the breach, to produce an undertaking-based theory that avoids the objections, or to analyze an agreement otherwise than in terms of undertakings. I consider each option and advocate the third: a better theory is that two people have an agreement where one makes an offer to the other that the other accepts. If X undertakes to Y that X will do Ax, and Y undertakes to X that Y will do Ay, they do not thereby agree with each other that they will respectively do Ax and Ay: there is just a pair of unconditional undertakings. Nor, it seems, is there an agreement between them if each merely gives to the other a conditional undertaking: if, for example, X undertakes to Y that if Y will do Ay X will do Ax, and Y undertakes to X that if X will do Ax Y will do Ay, it appears that both will comply with their undertakings if neither does anything; but X must do Ax and Y must do Ay if they are to comply with an agreement to perform those actions. If this is right, an agreement cannot be generated by complicating the conditionals, so that, for example, X undertakes that if, if X will do Ax, Y will do Ay, X will do Ax, andY undertakes the converse; for, depending on interpretation, either this is equivalent to two unconditional undertakings or both parties can still comply by doing nothing. Philosophers have nevertheless been attracted by the idea that an agree- ment can be modeled in terms of undertakings (a category that includes promises) by the parties. In Agreements, Undertakings, and Practical Rea- son I proposed two such models which develop the thought that there is an agreement where one party gives a conditional undertaking and the other responds with an unconditional undertaking.1 Because of this asymmetry 1. 0. Black, Agreements, Undertakings, and Practical Reason, 10 LEGAL THEORY (2004), here- inafter AUPR; the same line is taken in 0. BLACK, CONCEPTUAL FOUNDATIONS OF ANTITRUST (2005), at ch. 4. Note 3 of the former cites other works in which it is held that art agreement is to be understood in terms of undertakings. 1

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