Kevin M. Teeven, Moral Obligation Promise for Harm Caused, 39 Gonz. L. Rev 349 (2004).[PDF] [Westlaw] [LexisNexis]
Although the conventional view of the American moral obligation principle recognizes as binding only promises to pay for past benefits, the principle has been applied more broadly to encompass promises made to atone for past harms caused in relationships where cooperation and good faith were reasonably expected. When this writer was doing research for a recent article documenting how the moral obligation principle includes benefits flowing to parties other than promisors, he unearthed moral obligation decisions rendered over the past two centuries which were not grounded upon receipt of benefits at all, but rather involved promises to indemnify for promisors’ wrongs or for promisees’ harm suffered on account of promisors. That discovery prompted the undertaking of this study to document the evolution and scope of this overlooked sub-category of the moral obligation principle.
A moral obligation promise to compensate for a past, non-tortious wrong falls short of what is necessary to bring an action in either restitution or tort, and the absence of a bargain makes it unenforceable under contract law. While the doctrine of restitution may include a wrong that has nothing to do with unjust enrichment, the wrong must nevertheless be tortious. Judicial enforcement of a promise acknowledging a moral obligation to indemnify prevents the injustice of such an obligation otherwise falling through the cracks among the fields of restitution, tort, and contract. When the wrong committed is conduct short of breach of tort, contract, or fiduciary duties, a subsequent moral obligation promise may make the difference. Courts will look to the egregiousness of the wrong or harm as a means of screening whether a binding moral obligation promise existed…. Read More