I asked ChatGPT to compare the views of Stephen Smith, compared to mine/Rothbard/Evers, and that of Randy Barnett. (not reviewed closely yet)
Relevant works:
- Stephen A. Smith, “Towards a Theory of Contract,” in Oxford Essays in Jurisprudence: Fourth Series
- ——, “Contract Theory: ‘Introduction to General Theories’ and ‘the Justification of Contractual Obligations,‘” from Contract Theory, Oxford University Press, 2004
- Kinsella, The Title-Transfer Theory of Contract
- ——, “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” chap. 9 of Legal Foundations of a Free Society (Houston: Papinian Press, 2023)
- Randy E. Barnett, A Consent Theory of Contract (PDF)
86 Columbia Law Review 269 (1986)- ——, Beyond Reliance: Promissory Estoppel, Contract Formalities and Misrepresentation (PDF) (with Mary Becker) 15 Hofstra Law Review 445 (1987)
- ——, Squaring Undisclosed Agency Law With Contract Theory (PDF) 75 California Law Review 1969 (1987)
- ——, The Sound of Silence: Default Rules and Contractual Consent (PDF), 78 Virginia Law Review 821 (1992)
- ——, Some Problems With Contract as Promise (PDF), 77 Cornell Law Review 1022 (1992)
- ——, Rational Bargaining Theory and Contract: Default Rules, Hypothetical Consent, the Duty to Disclose, and Fraud (PDF) in “Symposium on Risks and Wrongs”, 15 Harvard Journal of Law and Public Policy 783 (1992)
- The Death of Reliance (PDF), 46 Journal of Legal Education 518 (1996)
- . . . and Contractual Consent (PDF), in “Symposium on Default Rules and Contractual Consent”3 Southern California Interdisciplinary Law Review 421 (1994)
- Others at his Georgetown page and website
ChatGPT report:
Here is a corrected, consolidated report.
Final report: Smith, Barnett, and Kinsella’s TTTC
The basic correction is this: Kinsella’s title-transfer theory is not a theory of contractual obligation at all. On his view, contracts do not create legally enforceable duties, are not binding promises, and do not generate anything properly called “breach of contract.” Instead, contracts are best understood as conditional transfers of title to owned resources. When a specified event occurs, title shifts; when it does not, it does not. What conventional lawyers call “damages for breach” is, in this framework, at most a prearranged or triggered title transfer that serves a similar practical function, but it is not damages for breach because there is no breach to begin with.
With that correction in place, the relationships among the theories become much clearer.
1. Smith’s theory
Stephen A. Smith is working squarely within mainstream contract theory. In both Towards a Theory of Contract and Contract Theory, he treats the central analytic question as the nature of contractual obligation, and his answer is the orthodox one: contracts are promises, or something very close to promises. At the start of Towards a Theory of Contract, he says the analytic answer he will defend is “the traditional or orthodox answer that contracts are promises or something closely akin to promises.”
He also defines the promissory view in straightforward terms. On p. 108 of Towards a Theory of Contract, he says: “contractual obligations are obligations that individuals place upon themselves,” and “a promise is created by communicating an intention to undertake an obligation.”
So Smith’s theory is a promissory, self-imposed-obligation theory. Contract, for him, is part of the law of voluntary undertakings. Even where he wants to understand contract through property theory, he still wants to preserve the distinct category of obligation.
2. Barnett’s theory
Barnett moves away from promise toward consent and rights-transfer. He argues that contract law is part of a broader theory of entitlements and that what matters is not promise as such but consent to the legal transfer of rights. He says a consent theory understands contract as part of a system that identifies when entitlements are “validly transferred from person to person by their consent.”
Barnett is therefore much closer to a property-rights framework than Smith is. But Barnett still speaks the language of contractual obligation, remedies, and breach. He reinterprets them, but he does not abolish them.
3. Kinsella’s TTTC
Kinsella goes further than Barnett. He does not merely redescribe contractual obligation in entitlement terms. He argues that the whole conventional framework of “binding promise,” “contractual obligation,” and “breach” is conceptually mistaken. On his view, “all contractual obligations really boil down to an obligation to give,” and that conventional language is misleading because the legal effect is just a transfer of title to owned things. More strongly, he concludes that “there is no such thing as contract breach,” because contracts are “not enforceable or binding promises but merely title transfers.”
So the corrected way to state TTTC is:
- not “obligations are property allocations,” but rather:
- contracts are not obligations at all; they are title transfers or conditional title transfers.
And not “breach leads to recognition of ownership or restitution,” but rather:
- there is no breach; there are only ownership consequences when agreed conditions occur or fail to occur.
That is the key correction.
4. How Smith compares to Kinsella
Smith and Kinsella are therefore not just offering rival answers to the same question. They are, in an important sense, answering different questions.
Smith asks: what kind of obligation is a contractual obligation, and why should the law enforce it?
Kinsella’s TTTC says: that is already the wrong starting point, because contracts do not create enforceable obligations in the first place. The real question is how owners can structure present or future title transfers by consent.
So Smith remains inside the conventional conceptual scheme; Kinsella rejects that scheme and reconstructs contract from property law outward.
5. Places where Smith comes surprisingly close to TTTC
Even though Smith ultimately remains promissory, he repeatedly notices things that point toward a title-transfer or property-based theory.
The clearest statement comes on p. 1 of Towards a Theory of Contract, where he says: “contract is like property.” He adds that to understand contract better, “we should turn … to property theory.”
That is not TTTC, but it is very close to the TTTC starting point.
A second striking passage is on p. 62 of Contract Theory, where Smith explicitly says one possible route would be to “abandon the exclusive focus on promises” and explain contract law as dealing with acts intended to change one’s normative relations, including “consensual … transfers of property.” He then rejects that move because he wants to distinguish “an interest in controlling property” from “an interest in undertaking obligations.”
That is almost a statement of the path toward TTTC, followed immediately by a retreat back to promissory theory.
A third passage is on p. 125 of Towards a Theory of Contract, where he says a plausible theory must explain how contract creates “a present right” that “is owned by its beneficiary” and becomes part of the beneficiary’s “present wealth,” like a house or other property.
Again, this is not TTTC, but it is very close to a property analysis of contractual positions.
6. The anti-promise objection Smith states
You asked specifically for the place where Smith formulates the classic anti-promise objection in a way resembling Evers and Rothbard. He does this most clearly in Towards a Theory of Contract.
On p. 109 he states the core objection in very direct terms. He says: “Enforcing promises qua promises” is the objection, and he says this is “inconsistent with J.S. Mill’s harm principle.”
On p. 110 he sharpens it. He says that if a promise is enforced merely as a promise, then the content of the obligation may be “a pure or partial obligation to benefit another,” and that enforcing such an obligation is “like enforcing charity.” He then says: “Enforcing promises is enforcing morality as such.”
That is a very strong anti-promissory statement. It is not yet TTTC, but it is in the same family of objections: the law cannot simply take a moral undertaking and make it legally binding as such.
Then comes the especially revealing passage on p. 111, where Smith summarizes Fried’s question: “How is it possible ‘that by my words I should make wrong what before was morally indifferent’?”
That is very close to the Rothbard/Evers/Kinsella line of thought. Their answer is: you cannot create a legally enforceable claim merely by uttering promissory words. What can happen is that an owner consents to transfer title, presently or conditionally. Smith does not draw that conclusion, but he states the problem in a form that strongly invites it.
A related passage, also important, is on p. 125 of Towards a Theory of Contract, where Smith describes the objection to promissory theories as the idea that they involve “a magical sleight of hand, whereby something is created out of nothing.”
That is about as close as one can get to the classic anti-promise objection without actually adopting TTTC. The TTTC answer to that objection is that nothing is created out of nothing: the legal effect arises from an owner’s consensual structuring of title to resources he already owns.
7. Does Smith show familiarity with Rothbard, Evers, Kinsella, or Barnett?
There is no indication in the material you uploaded that Smith engages Rothbard, Evers, or Kinsella. He does not appear to know or discuss the libertarian title-transfer theory tradition. His discussion is within mainstream Anglo-American contract theory.
He is, however, discussing problems and alternatives that overlap with Barnett’s terrain. He explicitly recognizes “transfers” as one possible answer to the analytic question, noting that theorists might disagree whether contractual obligations arise from “promises, reliance, or transfers.”
So Smith is aware of the conceptual possibility of a transfer-based theory. But he does not adopt it, and there is no sign here that he engages the specific libertarian property-title version.
8. How Kinsella would likely respond to Smith
Kinsella’s response would likely be that Smith is perceptive about the problems with promissory theory but stops short of the correct conclusion.
He would likely agree with Smith’s recognition that contract must be understood in relation to property. He would also likely agree with Smith’s formulation of the anti-promise objection: the law cannot just convert morality into enforceable obligation, and it cannot conjure legal rights by verbal magic alone.
But Kinsella would say that Smith retreats too quickly to the conventional framework of “self-imposed obligation.” The proper next step is not to refine promissory theory but to discard it. The right reconstruction is:
- contract is not promise,
- not obligation,
- not breach,
- but consensual title transfer.
In that sense, Smith repeatedly approaches the edge of TTTC but refuses to cross it.
9. Bottom line
The most accurate overall summary is this:
Smith is a sophisticated defender of a promissory theory of contract. He treats contracts as self-imposed obligations and tries to justify them, in significant part, through analogy to property.
Barnett shifts the discussion toward consensual transfer of rights within a general entitlement structure.
Kinsella’s TTTC is more radical than both. It does not reinterpret contractual obligation; it rejects the category. Contracts, on that view, do not create legally enforceable obligations, are not binding promises, and cannot be breached. They are conditional title transfers whose consequences may resemble conventional damages but are not damages for breach.
And the most revealing Smith passages for your purposes are these:
- p. 1: “contract is like property.”
- p. 109: “Enforcing promises qua promises” is objectionable and “inconsistent with J.S. Mill’s harm principle.”
- p. 110: enforcing promises is “like enforcing charity” and “enforcing morality as such.”
- p. 111: how can words “make wrong what before was morally indifferent”?
- p. 125: promissory theories seem to involve “a magical sleight of hand, whereby something is created out of nothing.”
- p. 62: contract law could instead be understood to include “consensual … transfers of property.”
Those are the passages where Smith comes closest both to the property turn and to the anti-promise critique that points toward TTTC.
If you want, I can next turn this into a tighter publishable memo, with footnote-style citations and cleaner prose.
