Contract is Not Promise; Contract is Consent
Randy E. Barnett
Georgetown University Law Center
March 22, 2011
Suffolk University Law Review, Forthcoming
Georgetown Public Law Research Paper No. 11-29
In the 1980s, Charles Fried was right to focus on what was missing from both the “death of contract” and “law and economics” approaches to contract law: the internal morality of contract. But he focused on the wrong morality. Rather than embodying the morality of promise-keeping, the enforcement of contracts can best be explained and justified as a product of the parties’ consent to be legally bound. In this essay, I observe that, in Contract as Promise, Fried himself admits that the “promise principle” cannot explain or justify two features that are at the core of contract law: the objective theory of assent and the content of most “gap fillers” or default rules of contract law. After summarizing how consent to contract accounts for both, I explain that, whereas the morality of promise-keeping is best considered within the realm of ethics - or private morality - legally enforcing the consent of the parties is a requirement of justice - or public morality.
Number of Pages in PDF File: 22
Keywords: contract, promise, moral theory, law and ethics
JEL Classification: K00, K12
Date posted: March 24, 2011
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