Jeffrey M. Lipshaw
Peter Tiersma’s work on wills (Tiersma 2010: 75–82) and contracts (Tiersma 1992) is an important advance on Langdellian formalism. Lawyers traffic in words, but what, if anything, is real about them? In the parlance of speech act theory, the issue is “how the utterances of a speaker are related to, and have an impact on, the surrounding world” (1992: 15). The common thread between contracts and wills is that their operative statements have illocutionary force, whether of declaration (“I dub thee Sir Geoffrey”) or commitment (“I promise to walk the dog”). In the appropriate context, when a speaker says, “I bequeath” or “I promise,” she is not describing an action, but performing the action of bequeathing or promising itself (1992: 17).1
As to the law of holographic wills, Tiersma’s application of speech act theory makes perfect sense and offers a bold solution: the testator’s performative utterances in pixels or bytes have the equivalent illocutionary force of a formal writing, and the law ought to recognize it (2010: 82–83). Tiersma’s assessment of offer and acceptance in classical formalism, it seems to me, is more respectful of the past. Nevertheless, it is still an admirable opening to even more radical critiques of misguided empiricism within classical formalism. That is what I propose here.
Langdell’s approach, as modified by Restatement (Second) of Contracts §45, insisted on there being equivalence of “offer and acceptance” as between bilateral and unilateral contracts. As Tiersma (1992: 10) paraphrases Llewellyn, the key question is “when is the deal on?” Under classical bilateral contract doctrine, it is when there are corresponding performative utterances of promissory commitment by offeror and offeree. In the case of unilateral contracts, the offeror’s performative utterance is a promise with the expectation the deal is on when the offeree performs the requested act. Hence, the great doctrinal question has been what, in terms of the return performance, constitutes the “acceptance,” and how fairly to treat the offeree’s pre-acceptance reliance on the offer if acceptance does not occur until completion. Tiersma rejects the need for equivalence between the bilateral and unilateral models, focusing instead on the promise as speech act (i.e., a performative utterance) and the responsive physical act. He concludes that formation of a contract should turn on acts, whether of speech or otherwise, signifying commitment that a deal is on (1992: 41).
Tiersma captures the correct issue: “how well the present doctrine of contract formation fits the intent of those who make agreements” (1992: 14). Within the framework of classical offer and acceptance doctrine, he is clearly onto something. I would like to take the critique of formalism a step further. I am skeptical that any such intent can ever be divined or that the never-never land of offer and acceptance doctrine has anything to do with the real mutual intention of the parties, whether or not manifested in performative utterances (see Lipshaw 2005). Even Tiersma’s enlightened application of the philosophy of language has not tempered my skepticism.
As Thomas Grey (1983: 6–11) observed in his review of Langdell’s orthodoxy, we can assess legal systems by criteria, among others, of formality, conceptual order (can the system’s bottom-level rules be derived from relatively few abstract principles and concepts?), and acceptability (does the system fulfill the ideals and desires of those subject to it?).2