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Contract Enforcement and the Harm Principle

Brian Bix

University of Minnesota Law School

Minnesota Legal Studies Research Paper No. 09-51

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

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Date posted: November 5, 2009  

Suggested Citation

Bix, Brian, Contract Enforcement and the Harm Principle. Minnesota Legal Studies Research Paper No. 09-51. Available at SSRN: https://ssrn.com/abstract=1500533 or http://dx.doi.org/10.2139/ssrn.1500533

Contact Information

Brian Bix (Contact Author)
University of Minnesota Law School ( email )
229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-2505 (Phone)
612-625-2011 (Fax)

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