Contract Enforcement and the Harm Principle

Abstract:     
According to some prominent commentators, John Stuart Mill’s “Harm Principle” raises important challenges to how we should understand contract law, and perhaps also for how it should be reformed. This paper explores this challenge, considering first how the purely prescriptive “Harm Principle” could be relevant to theories of contract law, which are usually understood as descriptive, explanatory or interpretive. Most theorists who view the harm principle as relevant to contract theory and practice see contract law as being essentially about the enforcement of promises.

This paper then raises questions about the applicability of the harm principle based on a view of contract law that sees contract enforcement (at its best) as a resource available to people (to allow them to make a certain kind of commitment that would otherwise not be possible) rather than a duty imposed upon them.

Finally, this paper considers limits to this view, based in part on the limits in the role consent actually plays in contract practice, and in part on the moral limits of consent.

Number of Pages in PDF File: 15

Keywords: contract, promise, harm principle, consent

working papers series