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Contract is Not Promise; Contract is Consent

22 Pages Posted: 24 Mar 2011  

Randy E. Barnett

Georgetown University Law Center

Date Written: March 22, 2011

Abstract

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.

Keywords: contract, promise, moral theory, law and ethics

JEL Classification: K00, K12

Suggested Citation

Barnett, Randy E., Contract is Not Promise; Contract is Consent (March 22, 2011). Suffolk University Law Review, Forthcoming; Georgetown Public Law Research Paper No. 11-29. Available at SSRN: https://ssrn.com/abstract=1792586

Randy E. Barnett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)

HOME PAGE: http://www.randybarnett.com

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