The Promissory Character of Adequate Assurances of Performance

Michael J. Borden, Cleveland-Marshall College of Law

Abstract

The contract doctrine of adequate assurances of performance has received relatively little scholarly attention. The small literature on the doctrine has largely praised, though occasionally criticized, it for its role in helping parties resolve conflicts arising as a result of prospective non-performance. Conceived this way, the doctrine occupies a place at the periphery of contract theory. But courts and commentators have completely overlooked another significant dimension of adequate assurances. In this Article, I re-characterize the doctrine as one that has significant implications for the central questions of contract law and theory: which promises should the law enforce, and how? The Article claims that in giving adequate assurances of performance, parties often make promises that the law should treat as independently enforceable. The Article then works out the consequences of treating adequate assurances as a species of enforceable promises. Specifically, the Article addresses the ramifications for damages and the length of time the “assurance promise” should be enforced.